EXHIBIT 3.1
D.R. HORTON, INC.
AMENDED AND RESTATED BYLAWS
D.R. HORTON, INC.
AMENDED AND RESTATED BYLAWS
Table of Contents Page
ARTICLE I - MEETING OF STOCKHOLDERS
Section 1. Time and Place of Meetings................................1
Section 2. Annual Meeting............................................1
Section 3. Special Meetings..........................................2
Section 4. Notice of Meetings........................................2
Section 5. Quorum....................................................2
Section 6. Voting....................................................2
ARTICLE II - DIRECTORS
Section 1. Powers....................................................3
Section 2. Number and Term of Office.................................3
Section 3. Election, Term of Office and Nomination...................3
Section 4. Vacancies and New Directorships...........................4
Section 5. Regular Meetings..........................................4
Section 6. Special Meetings..........................................4
Section 7. Quorum....................................................4
Section 8. Written Action............................................4
Section 9. Participation in Meetings by Conference Telephone.........5
Section 10. Committees................................................5
Section 11. Compensation..............................................5
Section 12. Rules.....................................................5
ARTICLE III - NOTICES
Section 1. Generally.................................................5
Section 2. Waivers...................................................6
ARTICLE IV - OFFICERS
Section 1. Generally.................................................6
Section 2. Compensation..............................................6
Section 3. Term......................................................6
Section 4. Authority and Duties......................................6
Section 5. Chairman..................................................7
Section 6. Vice Chairmen.............................................7
(i)
Table of Contents Page
Section 7. President.................................................7
Section 8. Chief Executive Officer...................................7
Section 9. Executive Vice Presidents.................................7
Section 10. Execution of Documents and Action with Respect to
Securities of Other Corporations..........................7
Section 11. Other Vice Presidents.....................................8
Section 12. Secretary and Assistant Secretaries.......................8
Section 13. Treasurer and Assistant Treasurers........................8
Section 14. Chief Financial Officer...................................9
Section 15. General Counsel...........................................9
ARTICLE V - STOCK
Section 1. Certificates..............................................9
Section 2. Transfer..................................................9
Section 3. Lost, Stolen or Destroyed Certificates....................9
Section 4. Record Date..............................................10
ARTICLE VI - GENERAL PROVISIONS
Section 1. Fiscal Year..............................................11
Section 2. Corporate Seal...........................................11
Section 3. Reliance upon Books, Reports and Records.................11
Section 4. Time Periods.............................................11
Section 5. Dividends................................................11
ARTICLE VII - AMENDMENTS
Section 1. Amendments...............................................11
(ii)
D.R. HORTON, INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at such
time and place, within or without the State of Delaware, as may be designated by
the Board of Directors, or by the Chairman of the Board, a Vice Chairman, the
President or the Secretary in the absence of a designation by the Board of
Directors, and stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
Section 2. Annual Meeting. (A) An annual meeting of the stockholders,
commencing with the year 1992, shall be held at such date, place and time as
shall be designated from time to time by resolution of the Board of Directors,
at which meeting the stockholders shall elect by a plurality vote the directors
to succeed those whose terms expire and shall transact such other business as
may properly be brought before the meeting.
(B) At any annual meeting of stockholders, only such new business shall
be conducted, and only such proposals shall be acted upon, as shall have been
properly brought before the meeting (i) by, or at the direction of, the Board of
Directors or (ii) by any stockholder entitled to vote at such meeting. Only such
new business and only such proposals as have been raised in accordance with the
procedures set forth in this Section 2(B) shall be eligible for action or
consideration at an annual meeting.
In order for a proposal to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation as set forth in this Section
2(B). To be timely, a stockholder's notice must be delivered to, or mailed and
received at, the principal executive office of the corporation not less than
thirty (30) calendar days prior to the date of the originally scheduled meeting,
regardless of any postponements, deferrals or adjournments of that meeting to a
later date; provided, however, that, if less than forty (40) calendar days'
notice or prior public disclosure of the date of the scheduled meeting is given
or made by the Corporation, notice by the stockholder to be timely must be so
received not later than the close of business on the tenth calendar day
following the earlier of the day on which such notice of the date of the
scheduled meeting was mailed or the day on which such public disclosure was
made. Such stockholder's notice shall set forth as to each matter the
stockholder proposes to bring before the meeting (a) a description of the
proposal desired to be brought before the meeting and the reasons for conducting
such business at the meeting, (b) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business, (c) the class
and number of shares of the Corporation beneficially owned by such stockholder
on the date of such stockholder's notice and (d) any financial or other interest
of such stockholder in the proposal.
Section 3. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by law or by the Restated
Certificate of Incorporation, as amended or further restated from time to time,
may be called at any time by the Board of Directors or by a committee of the
Board of Directors which has been duly designated by the Board of Directors and
whose powers and authority, as provided in a resolution of the Board of
Directors or in these bylaws, include the power to call such meetings, but such
special meetings may not be called by any other person or persons.
Section 4. Notice of Meetings. Written notice of every meeting of the
stockholders, stating the place, date and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting, except as
otherwise provided herein or by law. When a meeting is adjourned to another
place, date or time, written notice need not be given of the adjourned meeting
if the place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, written notice of the place, date and time of the adjourned
meeting shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting.
Section 5. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by law or by the Restated
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented.
Section 6. Voting. Except as otherwise provided by law or by the
Restated Certificate of Incorporation, each stockholder shall be entitled at
every meeting of the stockholders to one vote for each share of stock having
voting power standing in the name of such stockholder on the books of the
Corporation on the record date for the meeting and such votes may be cast either
in person or by written proxy. Every proxy must be duly executed and filed with
the Secretary of the Corporation. A stockholder may revoke any proxy which is
not irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary of the Corporation. Every vote taken by written
ballot shall be counted by one or more inspectors of election appointed by the
Board of Directors. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock which has voting power present in person or
represented by proxy shall decide any question properly brought before such
meeting, unless the question is one upon which by express provision of law, the
(2)
Restated Certificate of Incorporation or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
ARTICLE II
DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors, which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by law or by the Restated Certificate of Incorporation directed or required
to be exercised or done by the stockholders.
Section 2. Number and Term of Office. The Board of Directors shall
consist of one or more members. Subject to the provisions of the Restated
Certificate of Incorporation as amended or restated from time to time, the
number of directors shall be fixed by resolution of the Board of Directors or by
the stockholders at the annual meeting or a special meeting. Any decrease in the
authorized number of directors shall not be effective until the expiration of
the term of the directors then in office, unless, at the time of such decrease,
there shall be vacancies on the Board which are being eliminated by such
decrease.
Section 3. Election, Term of Office and Nomination. (A) Except as
provided in Section 4 of this Article, the directors shall be elected at each
annual meeting of stockholders, but if any such annual meeting is not held or
the directors are not elected thereat, then the directors may be elected at any
special meeting of stockholders held for that purpose. Each director shall hold
office until a successor has been elected and qualified.
(B) Only persons who are nominated in accordance with the following
procedures shall be eligible for election by the stockholders as directors.
Nominations of persons for election as directors of the Corporation may be made
at a meeting of stockholders at which directors are being elected (i) by, or at
the direction of, the Board of Directors or by, or at the direction of, any
committee or person authorized or appointed for that purpose by the Board of
Directors or (ii) by any stockholder of the Corporation entitled to vote for the
election of directors at the meeting who complies with the notice procedures set
forth in this Section 3(B). Any nomination other than those governed by clause
(i) of the preceding sentence shall be made pursuant to timely notice in writing
to the Secretary of the Corporation. To be timely, a shareholder's notice shall
be delivered to, or mailed and received at, the principal executive office of
the Corporation not less than thirty (30) calendar days prior to the date of the
originally scheduled meeting, regardless of any postponements, deferrals or
adjournments of that meeting to a later date; provided, however, that, if less
than forty (40) calendar days' notice or prior public disclosure of the date of
the scheduled meeting is given or made by the Corporation, notice by the
stockholder, to be timely, must be so received not later than the close of
business on the tenth calendar day following the earlier of the day on which
such notice of the date of the scheduled meeting was mailed or the day on which
such public disclosure was made. Such stockholder's notice to the Secretary
(3)
shall set forth (a) as to each person whom the stockholder proposes to nominate
for election as a director (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class and number of any shares of the Corporation which are
beneficially owned by such person and (iv) any other information relating to
such person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to any then existing rule or regulation
promulgated under the Securities Exchange Act of 1934, as amended (whether or
not then applicable to the Corporation); and (b) as to the stockholder giving
the notice (i) the name and record address of such stockholder and (ii) the
class and number of shares of the Corporation which are beneficially owned by
such stockholder. The Corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the Corporation to
determine the eligibility of such proposed nominee as a director. No person
shall be eligible for election as a director unless nominated as set forth
herein.
Section 4. Vacancies and New Directorships. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
which occur between annual meetings of the stockholders may be filled by a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director, and the directors so elected shall hold office until
the next annual meeting of the stockholders and until their successors are
elected and qualified, except as required by law.
Section 5. Regular Meetings. Regular meetings of the Board of Directors
may be held without notice immediately after the annual meeting of the
stockholders and at such other time and place as shall from time to time be
determined by the Board of Directors.
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, a Vice Chairman or the President on
one day's written notice to each director by whom such notice is not waived,
given either personally or by mail or telegram, and shall be called by the
President or the Secretary in like manner and on like notice on the written
request of any two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a
majority of the total number of directors then in office shall constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time to another place, time or date, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 8. Written 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 or proceedings of the Board or Committee.
(4)
Section 9. Participation in Meetings by Conference Telephone. Members
of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or any such
committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at the
meeting.
Section 10. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation and each
to have such lawfully delegable powers and duties as the Board may confer. Each
such committee shall serve at the pleasure of the Board of 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.
Except as otherwise provided by law, any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it. Any committee or committees so
designated by the Board shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors. Unless otherwise
prescribed by the Board of Directors, a majority of the members of the committee
shall constitute a quorum for the transaction of business, and the act of a
majority of the members present at a meeting at which there is a quorum shall be
the act of such committee. Each committee shall prescribe its own rules for
calling and holding meetings and its method of procedure, subject to any rules
prescribed by the Board of Directors, and shall keep a written record of all
actions taken by it.
Section 11. Compensation. The Board of Directors may establish such
compensation for, and reimbursement of the expenses of, directors for attendance
at meetings of the Board of Directors or committees, or for other services by
directors to the Corporation, as the Board of Directors may determine.
Section 12. Rules. The Board of Directors may adopt such special
rules and regulations for the conduct of their meetings and the management of
the affairs of the Corporation as they may deem proper, not inconsistent with
law or these bylaws.
ARTICLE III
NOTICES
Section 1. Generally. Whenever by law or under the provisions of the
Restated Certificate of Incorporation or these bylaws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
(5)
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram, telephone or facsimile
transmission.
Section 2. Waivers. Whenever any notice is required to be given by law
or under the provisions of the Restated Certificate of Incorporation or these
bylaws, a waiver thereof in writing, signed by the person or persons entitled to
such notice, whether before or after the time of the event for which notice is
to be given, shall be deemed equivalent to such notice. Attendance of a person
at a meeting shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened.
ARTICLE IV
OFFICERS
Section 1. Generally. The officers of the Corporation shall be elected
by the Board of Directors and shall consist of a President, a Secretary, and a
Treasurer. The Board of Directors may also choose any or all of the following: a
Chairman of the Board, one or more Vice Chairmen, Executive Vice Presidents,
Senior Vice Presidents, Vice Presidents and Assistant Vice Presidents, a Chief
Financial Officer, a General Counsel, a Controller, one or more Assistant
Secretaries and Assistant Treasurers and such other officers as the Board of
Directors shall deem necessary or desirable in the conduct of the affairs of the
Company, with such designations, titles, duties and responsibilities as are set
forth in these bylaws, or as the Board of Directors shall determine.
Section 2. Compensation. The compensation of all officers and agents of
the Corporation who are designated executive officers by the Board of Directors
shall be fixed by the Board of Directors. The Board of Directors may delegate
the power to fix the compensation of some or all of the other officers and
agents of the Corporation to a committee of the Board, or may delegate that
power to any officer of the Corporation in respect of some or all of the other
officers under his or her supervision.
Section 3. Term. The officers of the Corporation shall hold office
until their successors are elected and qualified. Any officer may be removed at
any time by the affirmative vote of a majority of the directors. Any vacancy
occurring in any office of the Corporation may be filled by the Board of
Directors.
Section 4. Authority and Duties. Each of the officers of the
Corporation shall have such authority and shall perform such duties as are
stated in these bylaws and as may be stated from time to time by the Board of
Directors, or a duly authorized committee of the Board, in a resolution which is
(6)
not inconsistent with these bylaws and, to the extent not so stated, as
generally pertain to their respective offices, subject to the control of the
Board of Directors.
Section 5. Chairman. The Chairman of the Board of Directors, if one be
chosen, shall be a member of the Board of Directors. The Chairman of the Board
of Directors shall preside at all meetings of the stockholders and of the Board
of Directors, and he shall have such other authority and shall perform such
other duties as may be established in accordance with Section 4 of this Article.
The Chairman may delegate to any qualified person authority to chair any meeting
of the stockholders, either on a temporary or a permanent basis.
Section 6. Vice Chairmen. The Vice Chairmen, if one or more be chosen,
shall be members the Board of Directors. In case no Chairman of the Board is
chosen, or of the inability or failure of the Chairman to perform the duties of
that office, the Vice Chairmen in order of their seniority shall perform the
duties of Chairman. In addition, the Vice Chairmen shall have such authority and
shall perform such duties as may be established in accordance with Section 4 of
this Article.
Section 7. President. The President shall be a member of the Board of
Directors. In case no Chairman of the Board or Vice Chairman is chosen, or of
the inability or failure of the Chairman or any Vice Chairman to perform the
duties of Chairman, the President shall perform the duties of the Chairman. In
addition, the President shall have such authority and shall perform such duties
as may be established in accordance with Section 4 of this Article.
Section 8. Chief Executive Officer. The officer who is designated the
Chief Executive Officer shall be responsible for the active management and
direction of the business and the affairs of the Corporation. In addition, the
Chief Executive Officer shall have such authority and shall perform such duties
as may be established in accordance with Section 4 of this Article.
Section 9. Executive Vice Presidents. The Executive Vice Presidents, if
one or more be chosen, shall have such authority and shall perform such duties
as may be established in accordance with Section 4 of this Article.
Section 10. Execution of Documents and Action with Respect to
Securities of Other Corporations. The Chairman, the Chief Executive Officer, any
Vice Chairman, the President and any Executive Vice President shall have and
each is hereby given, full power and authority, except as otherwise required by
law or directed by the Board of Directors, (a) to execute, on behalf of the
Corporation, all duly authorized contracts, agreements, deeds, conveyances or
other obligations of the Corporation, applications, consents, proxies and other
powers of attorney, and other documents and instruments, and (b) to vote and
otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders (or with respect to any action of such stockholders) of
any other corporation in which the Corporation may hold securities and otherwise
to exercise any and all rights and powers which the Corporation may possess by
(7)
reason of its ownership of securities of such other corporation. In addition,
each of such officers may delegate to other officers, employees and agents of
the Corporation the power and authority to take any respective action which he
or she is authorized to take under this Section 10, with such limitations as he
or she may specify; such authority so delegated shall not be re-delegated by the
person to whom such execution authority has been delegated.
Section 11. Other Vice Presidents. Each Vice President other than an
Executive Vice President, however titled, shall perform such duties and services
and shall have such authority and responsibilities as are set forth in these
bylaws or as shall be assigned or required from time to time by the Board of
Directors, the Chairman, the Chief Executive Officer, a Vice Chairman, or the
President, or by the Executive Vice President or the Senior Vice President to
whom such Vice President reports.
Section 12. Secretary and Assistant Secretaries. (A) The Secretary
shall attend all meetings of the stockholders and all meetings of the Board of
Directors and record all proceedings of the meetings of the stockholders and of
the Board of Directors and shall perform like duties for the standing committees
when requested by the Board of Directors, the Chairman, the Chief Executive
Officer, a Vice Chairman, the President or an Executive Vice President. The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and meetings of the Board of Directors. The Secretary shall have
charge of the seal of the Corporation and authority to affix the seal to any
instrument. The Secretary or any Assistant Secretary may attest to the corporate
seal by handwritten or facsimile signature. The Secretary shall keep and account
for all books, documents, papers and records of the Corporation except those for
which some other officer or agent has been designated or is otherwise properly
accountable. The Secretary shall have authority to sign stock certificates. In
addition, the Secretary shall have such authority and shall perform such duties
as may be established in accordance with Section 4 of this Article.
(B) Assistant Secretaries, in the order of their seniority, shall
assist the Secretary and, if the Secretary is unavailable or fails to act,
perform the duties and exercise the authority of the Secretary.
Section 13. Treasurer and Assistant Treasurers. (A) The Treasurer shall
have the custody of the funds and securities belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Treasurer with the prior approval of the Board of Directors, the Chairman, the
Chief Executive Officer or the President. The Treasurer shall disburse the funds
and pledge the credit of the Corporation as may be directed by the Board of
Directors and shall render to the Board of Directors, the Chairman, the Chief
Executive Officer or the President, as and when required by them, or any of
them, an account of all transactions by the Treasurer.
(B) Assistant Treasurers, in the order of their seniority, shall assist
the Treasurer and, if the Treasurer is unable or fails to act, perform the
duties and exercise the powers of the Treasurer.
(8)
Section 14. Chief Financial Officer. The Chief Financial Officer shall
be the chief accounting officer of the Corporation. The Chief Financial Officer
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation in accordance with accepted accounting methods and
procedures. The Chief Financial Officer shall initiate periodic audits of the
accounting records, methods and systems of the Corporation. The Chief Financial
Officer shall render to the Board of Directors, the Chairman, the Chief
Executive Officer or the President, as and when required by them, or any of
them, a statement of the financial condition of the Corporation. In case no
Chief Financial Officer is chosen, or of the inability of failure of the Chief
Financial Officer to perform the duties of that office, the Treasurer shall
perform the duties of the Chief Financial Officer.
Section 15. General Counsel. The General Counsel shall be the chief
legal officer of the Corporation. The General Counsel shall provide legal
counsel and advice to the Board of Directors and to the officers with respect to
compliance with applicable laws and regulations. The General Counsel shall also
provide or obtain legal representation of the Corporation in proceedings by or
against the Corporation. The General Counsel shall render to the Board of
Directors, the Chairman, the Chief Executive Officer, the President or an
Executive Vice President, as and when required by them, or any of them, a report
on the status of claims against, and pending litigation of, the Corporation.
ARTICLE V
STOCK
Section 1. Certificates. Certificates representing shares of stock of
the Corporation shall be in such form as shall be determined by the Board of
Directors, subject to applicable legal requirements. Such certificates shall be
numbered and their issuance recorded in the books of the Corporation, and such
certificate shall exhibit the holder's name and the number of shares and shall
be signed by, or in the name of the Corporation by the Chairman of the Board or
the President and the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the Corporation and shall bear the corporate seal. Any or
all of the signatures and the seal of the Corporation, if any, upon such
certificates may be facsimiles, engraved or printed.
Section 2. Transfer. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue, or to cause its
transfer agent to issue, a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
Section 3. Lost, Stolen or Destroyed Certificates. The Secretary may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed upon the making of an affidavit of that
fact, satisfactory to the Secretary, by the person claiming the certificate of
(9)
stock to be lost, stolen or destroyed. As a condition precedent to the issuance
of a new certificate or certificates the Secretary may require the owner of such
lost, stolen or destroyed certificate or certificates to give the Corporation a
bond in such sum and with such surety or sureties as the Secretary may direct as
indemnity against any claims that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed or the
issuance of the new certificate.
Section 4. Record Date. (A) In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty nor less than ten days before the date of such meeting.
If no record is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(B) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which resolution fixing the record date is adopted by the Board of
Directors and which date shall not be more than ten days which the resolution
fixing the record date is adopted by the Board of Directors. If no record date
has been fixed by the Board of Directors, the record date for determining
stockholders to consent to corporate action in writing without a meeting, when
no prior action by the Board of Directors is required, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(C) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
(10)
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be
fixed from time to time by the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may adopt a corporate
seal and use the same by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 3. Reliance upon Books, Reports and Records. Each director,
each member of a committee designated by the Board of Directors, and each
officer of the Corporation shall, in the performance of his or her duties, be
fully protected in relying in good faith upon the records of the Corporation and
upon such information, opinions, reports or statements presented to the
Corporation by any of the Corporation's officers or employees, or committees of
the Board of Directors, or by any other person as to matters the director,
committee member or officer believes are within such other person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Corporation.
Section 4. Time Periods. In applying any provision of these bylaws
which requires that an act be done or not be done a specified number of days
prior to an event or that an act be done during a period of a specified number
of days prior to an event, calendar days shall be used, the day of the doing of
the act shall be excluded and the day of the event shall be included.
Section 5. Dividends. The Board of Directors may from time to time
declare and the Corporation may pay dividends upon its outstanding shares of
capital stock, in the manner and upon the terms and conditions provided by law
and the Restated Certificate of Incorporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendments. These bylaws may be altered, amended or
repealed, or new bylaws may be adopted, by the stockholders or by the Board of
Directors; provided, however, that the stockholders may not alter, amend or
repeal the provisions of Section 2 of Article I or Sections 2 or 3 of Article II
of these Bylaws or this Section 1 of this Article VII except upon the
affirmative vote of the holders of not less than sixty-six and two-thirds
percent (66 2/3%) of the total voting power of all outstanding shares of voting
stock of the Corporation.
(11)