Exhibit 3.4
AMENDED AND RESTATED
BY-LAWS
OF
RELIANCE GROUP HOLDINGS, INC.
ADOPTED ON NOVEMBER 18, 1998
ARTICLE I
Offices
1. Registered Office. The registered office of the Corporation in Delaware
shall be at 1209 Orange Street, in the City of Wilmington, County of New Castle,
State of Delaware, and the name of the resident agent in charge thereof is The
Corporation Trust Company.
2. Other Offices. The Corporation may also have an office or offices at such
other place or places, within or without the State of Delaware, as the Board of
Directors may from time to time designate or the business of the Corporation may
require.
ARTICLE II
Stockholders' Meetings
1. Annual Meetings. The annual meeting of the stockholders of the Corporation
for the purpose of electing directors and for the transaction of such other
business as may properly be brought before the meeting shall be held on the
second Thursday of May in each year (or if such day be a legal holiday, then on
the next succeeding day not a legal holiday) at 10:00 o'clock a.m., or at such
other time and date as shall be fixed from time to time by resolution of the
Board of Directors and as set forth in the notice of the meeting. Such annual
meeting of stockholders shall be held at such place, within or without the State
of Delaware, as may be fixed by the Board of Directors.
2. Special Meetings. Special meetings of the stockholders shall be held at
such place within or without the State of Delaware as may be designated in the
notice of said meeting, upon call of the Board of Directors, the Chairman of the
Board, the President or the Secretary but not by any other person.
3. Notice of Meetings. The Secretary or any Assistant Secretary shall cause
notice of the place, date and hour of each meeting of the stockholders, and, in
the case of a special meeting, the purpose or purposes for which such meeting is
called, to be given personally or by mail, at least ten (10) but not more than
sixty (60) days prior to the meeting, to each stockholder of record entitled to
vote at his post office address as the same appears on the books of the
Corporation at the time of such mailing. Notice of any meeting of stockholders
need not be given to any stockholder who shall sign a waiver of such notice in
writing, whether before or after the time of such meeting, or to any stockholder
who shall attend such meeting in person or by proxy. Notice of any adjourned
meeting of the stockholders of the Corporation need not be given, except as
otherwise required by statute.
4. Nature of Business at Annual Meetings of Stockholders. No business may be
transacted at an annual meeting of the stockholders of the Corporation, other
than business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
any duly authorized committee thereof), (b) otherwise properly brought before
the annual meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (c) otherwise properly brought before the
annual meeting by any stockholder of the Company (i) who is a stockholder of
record on the date of the giving of the notice provided for in this paragraph 4
and on the record date for the determination of stockholders entitled to vote at
such annual meeting and (ii) who complies with the notice procedures set forth
in this paragraph 4.
In addition to any other applicable requirements (including that the
business proposed to be brought before the annual meeting of the stockholders of
the Corporation be a proper matter for stockholder action), for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Corporation
not less than ninety (90) days nor more than one hundred twenty (120) days prior
to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
public disclosure of the date of the annual meeting was made, whichever first
occurs.
To be proper written form, a stockholder's notice to the Secretary must
set forth as to each matter such stockholder proposes to bring before the annual
2
meeting of the stockholders of the Corporation (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 record address
of such stockholder and any beneficial owner on whose behalf the proposal is
being made, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder
and any beneficial owner on whose behalf the proposal is being made, (iv) a
description of all arrangements or understandings between such stockholder and
any other person or persons (including beneficial owners and, in all cases, the
names of such other person or persons) in connection with the proposal of such
business by such stockholder and any material interest of such stockholder or
such other person or persons in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at the annual meeting to
bring such business before the meeting.
No business shall be conducted at the annual meeting of stockholders of
the Corporation except business brought before the annual meeting in accordance
with the procedures set forth in this paragraph 4; provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this paragraph 4 shall be deemed to preclude
discussion by any stockholder of any such business. If the Chairman of an annual
meeting of the stockholders of the Corporation determines that business was not
properly brought before the annual meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the business was not
properly brought before the meeting and such business shall not be transacted.
The provisions of this paragraph 4 shall first be effective with
respect to the Corporation's Annual Meeting of Stockholders to be held in the
year 2000.
5. Nomination of Directors. Only persons who are nominated in accordance with
the procedures set forth in this paragraph 5 shall be eligible for election as
directors of the Corporation, except as may be otherwise provided in the
Certificate of Incorporation with respect to the right of holders of preferred
stock, if any, of the Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election to the
Board of Directors may be made at any annual meeting of stockholders of the
Corporation, or at any special meeting of stockholders called for the purpose of
electing directors, (a) by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (b) by any stockholder of the Corporation
(i) who is a stockholder of record on the date of the giving of the notice
provided for in this paragraph 5 and on the record date for the determination of
stockholders entitled to vote at such meeting and (ii) who complies with the
notice procedures set forth in this paragraph 5.
3
In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Corporation
(a) in the case of an annual meeting, not less than ninety (90) days nor more
than one hundred twenty (120) days' prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided, however, that in
the event that the annual meeting is called for a date that is not within thirty
(30) days before or after such anniversary date, notice by the stockholder in
order to be timely must be so received not later than the close of business on
the tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or public disclosure of the date of the annual meeting
was made, whichever first occurs and (b) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth (10th) day following the day on which the notice
of the date of the special meeting was mailed or public disclosure of the date
of the special meeting was made, whichever occurs first. In no event shall the
public announcement of the adjournment of a meeting commence a new time period
for the giving of a stockholder's notice as described above.
To be in proper written form, a stockholder's notice to the Secretary
must 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 the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person and (iv) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended and the rules and regulations
promulgated thereunder (the "Exchange Act") and (b) as to the stockholder giving
the notice (i) the name and record address of such stockholder, (ii) the class
or series and number of shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or person (including their names) pursuant to which
the nomination(s) are to be made by such stockholder, (iv) a representation that
such stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice and (v) any other information relating
to such stockholder that would be required to be disclosed in a proxy statement
or other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Exchange Act and the
rules and regulations promulgated thereunder. Such notice must be accompanied by
a written consent of each
4
proposed nominee to being named as a nominee and to serve as a director if
elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
paragraph 5. If the Chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the Chairman shall declare to
the meeting that the nomination was defective and such defective nomination
shall be disregarded.
The provisions of this paragraph 5 shall first be effective with
respect to the Corporation's Annual Meeting of Stockholders to be held in the
year 2000.
6. Conduct of Meetings. The Board of Directors of the Corporation may adopt
by resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the
Chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such Chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the Chairman of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of
business for the meeting; (ii) rules and procedures for maintaining order at the
meeting and the safety of those present; (iii) limitations on attendance at or
participation in the meeting to stockholders of record of the Corporation, their
duly authorized and constituted proxies or such other persons as the Chairman of
the meeting shall determine; (iv) restrictions on entry to the meeting after the
time fixed for the commencement thereof and (v) limitations on the allotted
questions or comments by participants. Unless and to the extent determined by
the Board of Directors or the Chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
7. Quorum. A quorum at all meetings of stockholders shall consist of the
holders of record of a majority of the shares of stock of the Corporation,
issued and outstanding, entitled to vote at the meeting, present in person or by
proxy, except as otherwise provided by statute or the Certificate of
Incorporation. When a quorum is once present to organize a meeting, it is not
broken by the subsequent withdrawal of any stockholders.
8. Absence of Quorum. In the absence of a quorum at any meeting or any
adjournment thereof, a majority of those present in person or by proxy and
entitled to vote may adjourn such meeting from time to time. At any such
adjourned meeting at which a quorum is present any business may be transacted
which might have been transacted at the meeting as originally called.
5
9. Voting in General. Except as otherwise provided in these By-Laws, the
Certificate of Incorporation or in the laws of the State of Delaware, at every
meeting of the stockholders, each stockholder of record of the Corporation shall
have one vote in person or by proxy for each share of stock having voting rights
held by him and registered in his name on the books of the Corporation. Any vote
on shares of stock of the Corporation may be given by the stockholder entitled
thereto in person or by his proxy appointed by an instrument in writing,
subscribed by such stockholder, or by his attorney thereunto authorized, and
delivered to the secretary of the meeting. Except as otherwise required by the
laws of the State of Delaware, by the Certificate of Incorporation or these
By-Laws, all matters coming before any meeting of the stockholders shall be
decided by a plurality vote of the stockholders of the Corporation present in
person or by proxy at such meeting and entitled to vote thereat, a quorum being
present.
10. Consent of Stockholders in Lieu of Meeting. To the fullest extent
permitted by law, whenever any action is required or permitted to be taken at a
meeting of stockholders, by law, by the Certificate of Incorporation or by these
By-Laws, such action may be taken without a meeting, without prior notice and
without a vote of stockholders, 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.
ARTICLE III
Directors
1. General Powers The property, affairs and business of the Corporation shall
be managed by or under the direction of its Board of Directors, which shall
consist of not less than one (1) nor more than twenty (20) persons. The exact
number of directors within the maximum and minimum limitations specified shall
be fixed from time to time by resolution of the Board of Directors or by the
stockholders.
2. Term of Office. Each director (whether elected at an annual meeting, or to
fill a vacancy or newly created directorship or otherwise) shall hold office
until his successor shall be elected and shall qualify or until his earlier
resignation or removal.
3. Meetings. Meetings of the Board of Directors shall be held at such place
within or outside of the State of Delaware as may from time to time be fixed by
resolution of the Board of Directors, or as may be specified in the notice of
the meeting. Regular meetings of the Board of Directors shall be held at such
times as may from time to time be fixed by resolution of the Board of Directors,
and
6
special meetings may be held at any time upon the call of the Chairman of the
Board or President or a majority of the directors by oral, telegraphic or
written notice duly served on or sent or mailed to each director not less than
one day before such meeting. A meeting of the Board of Directors may be held
without notice immediately after the annual meeting of stockholders. Notice need
not be given of regular meetings of the Board of Directors. Meetings may be held
at any time without notice if all the directors are present, or if at any time
before or after the meeting those not present waive notice of the meeting in
writing.
4. Quorum. One-third of the members of the Board of Directors then acting
shall constitute a quorum for the transaction of business, but if at any meeting
of the Board of Directors there shall be less than a quorum present, a majority
of those present may adjourn the meeting, without further notice, from time to
time until a quorum shall have been obtained.
5. Vacancies. In case one or more vacancies shall occur in the Board of
Directors by reason of death, resignation, increase in the number of directors
or otherwise except in so far as otherwise provided in these By-Laws, the
remaining directors, although less than a quorum, may, by a majority vote, elect
a successor or successors for the unexpired term or terms.
6. Removal from Office. Any or all of the directors may by the affirmative
vote of the holders of a majority of all the shares of stock outstanding and
entitled to vote for the election of directors be removed from office, either
with or without cause.
7. Action Without a Meeting. Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or of the committee,
as the case may be, consent thereto in writing, and such writing or writings are
filed with the minutes of proceedings of the Board of Directors or the
committee.
8. Regulations; Manner of Acting. To the extent consistent with law, the
Certificate of Incorporation and these By-Laws, the Board of Directors and any
committee thereof may adopt such rules and regulations for the conduct of
meetings of the Board or such committee and for the management of the property,
affairs and business of the Corporation as the Board may deem appropriate.
Members of the Board of Directors and any committee thereof may participate in a
meeting of the Board or 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 shall constitute
presence in person at such meeting for all purposes of these By-Laws.
9. Compensation. Directors may, by resolution of the Board of Directors, be
allowed a fixed sum and expenses of attendance for attendance at regular or
special meetings of the Board of Directors; provided that nothing herein
contained
7
shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees, and others who attend pursuant to direction, may, by vote
of the Board of Directors, be allowed a like fixed sum and expenses of
attendance for attending committee meetings. The Chairman of each committee,
may, by vote of the Board of Directors, be allowed an additional fixed sum for
acting as such.
10. Executive Committee. The Board of Directors shall appoint an Executive
Committee consisting of one or more members of the Board of Directors, who shall
serve at the pleasure of the Board of Directors. The Board of Directors may
appoint one of the members of the Executive Committee to act as Chairman of the
Executive Committee. The Executive Committee shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it, except that to the extent
prohibited by the laws of the State of Delaware, the Executive Committee shall
not have the power or authority to approve, adopt or recommend to the
stockholders of this Corporation, any action or matter expressly required by the
laws of the State of Delaware to be submitted to stockholders for approval or to
adopt, amend or repeal any bylaw of the Corporation.
11. Finance Committee. The Board of Directors shall appoint a Finance
Committee consisting of one or more members of the Board of Directors, who shall
serve at the pleasure of the Board of Directors. The Board of Directors may
appoint one of the members of the Finance Committee to act as Chairman of the
Finance Committee. The Finance Committee shall have and may exercise, all powers
of the Board of Directors with respect to all financings by the Corporation and
its subsidiaries for whatever purpose (including without limitation, for
operations, acquisitions and/or sales). The financings approved by the Finance
Committee may be effected through borrowings, financing leases, issues of notes,
bonds, debentures, mortgages, guarantees (including without limitation,
guarantees and indemnifications required by purchasers in connection with sales
of assets), common and preferred stock, warrants, options, rights, other
convertible or non-convertible securities or otherwise and, may be, at the
discretion of the Committee, secured by the assets of the Corporation and/or its
subsidiaries. The Finance Committee may authorize the seal of the Corporation to
be affixed to all papers which may require it.
12. Nominating Committee. The Board of Directors shall appoint a Nominating
Committee consisting of one or more members of the Board of Directors, who shall
serve at the pleasure of the Board of Directors. The Board of Directors may
appoint one of the members of the Nominating Committee to act as Chairman of the
Nominating Committee. The Nominating Committee shall recommend to the Board of
Directors candidates for election to the Board of Directors. The Nominating
Committee shall consider candidates recommended
8
for nomination at an annual meeting of stockholders by holders of the
Corporation's common stock who are stockholders of record on the date of the
giving of notice provided in this paragraph 12; provided that such
recommendations are received by the Corporation no less than ninety (90) and no
more than one hundred twenty (120) days prior to the anniversary date of the
immediately preceding annual meeting of stockholders and; provided further that
such recommendation is delivered together with a resume of the experience and
qualifications of the proposed nominee and a written statement from such nominee
consenting to be nominated and to serve, if elected.
13. Regular Compensation Committee. The Board of Directors shall appoint a
Regular Compensation Committee consisting of one or more members of the Board of
Directors, who shall serve at the pleasure of the Board of Directors. The Board
of Directors may appoint one of the members of the Regular Compensation
Committee to act as Chairman of the Regular Compensation Committee. The Regular
Compensation Committee shall have and may exercise the authority to evaluate the
performance and approve the compensation of all principal executive officers of
the Corporation who are not directors.
14. Special Compensation Committee. The Board of Directors shall appoint a
Special Compensation Committee consisting of one or more members of the Board of
Directors, who shall serve at the pleasure of the Board of Directors. The Board
of Directors may appoint one of the members of the Special Compensation
Committee to act as Chairman of the Special Compensation Committee. The Special
Compensation Committee shall have and may exercise the authority to (a) evaluate
performance and approve compensation of officers of the Corporation who are also
directors of the Corporation and of the principal executive officers of the
Corporation's insurance operations, (b) approve transactions which would be
required to be disclosed to stockholders of the Corporation under Item 404(a) of
Regulation S-K of the Securities Exchange Act of 1933, as amended, (c)
administer such bonus, stock option, stock purchase, compensation and other
similar plans as the Board of Directors may from time to time approve and to
which plans the provisions of Section 162(m) of the Internal Revenue Code of
1986, as amended, apply.
15. Audit Committee. The Board of Directors shall appoint an Audit Committee
consisting of one or more members of the Board of Directors (provided that for
so long as the Corporation has common stock listed on the New York Stock
Exchange, the members of the Audit Committee shall be directors who meet the New
York Stock Exchange's requirements for independence), who shall serve at the
pleasure of the Board of Directors. The Board of Directors may appoint one of
the members of the Audit Committee to act as Chairman of the Audit Committee.
The Audit Committee shall have and may exercise the authority to (i) nominate
the
9
Corporation's auditors for approval of the stockholders of the Corporation if it
deems such approval necessary or appropriate, (ii) review the results of the
annual audits performed by the Corporation's auditors, (iii) review the adequacy
of internal accounting and financial reporting controls, (iv) review the
internal audit function, (v) review new developments that may have an effect on
the Corporation's financial reports, and (vi) review any potential conflicts of
interest and business ethics questions which arise with respect to the
Corporation.
16. Other Committees; Elimination of Committees. The Board of Directors, in
its discretion, may appoint one or more committees (in addition to the
Committees described above), each consisting of one or more members of the Board
of Directors. The Board of Directors may appoint one of the members of any such
committee to be the Chairman of that Committee. Each such committee shall have
such powers and duties as may be provided by resolution or resolutions of the
Board of Directors. The Board of Directors may also change the authority or size
of, or eliminate entirely, any of the Committees described in these By-Laws or
created hereafter.
17. Quorum; Manner of Acting, etc. Each Committee shall have quorum
requirements which are no more restrictive than those of the Board of Directors
and shall in all other respects act in the manner and following the procedures
established for the Board of Directors.
ARTICLE IV
Officers
1. General. Subject to the last sentence hereof, the officers of the
Corporation shall be appointed by the Board of Directors and shall be a Chairman
of the Board, a President, one or more Executive Vice Presidents, one or more
Vice Presidents (one or more of which may be designated Senior Vice Presidents
by the Board of Directors), a Secretary and a Treasurer. From time to time the
Board of Directors may appoint such Assistant Secretaries, Assistant Treasurers
and such other officers, agents and employees as it may deem proper. Any number
of offices may be held by the same person. The Chairman of the Board and the
President shall be chosen from among the Directors. Notwithstanding the
authority granted to the Board in this paragraph 1, the Chairman of the Board
and the President, acting singly or together, may appoint one or more Vice
Presidents (but may not designate any such Vice Presidents as Senior Vice
Presidents), Assistant Secretaries and Assistant Treasurers.
2. Term. All officers shall hold their offices until their respective
successors are elected and qualify, or until their earlier resignation or
removal. Any officer may be removed from office, either with or without cause,
at any time by the affirmative vote of a majority of the members of the Board of
Directors then in office or by the Chairman of the Board or the President, if
such officer holds an office to which he could have been appointed by the
Chairman of the Board or the
10
President under these By-Laws. Any officer may resign at any time upon written
notice to the Corporation.
3. Power to Vote and Sell Securities Owned by the Corporation. Unless
otherwise ordered by the Board of Directors, the Chairman of the Board, the
President, any Executive Vice President or the Senior Vice President and Chief
Investment Officer, acting singly or together, shall have full power and
authority on behalf of the Corporation (a) to attend, to act and to vote at any
meetings of security holders of the corporations in which the Corporation may
hold securities, and at any such meetings shall possess and may exercise any and
all the rights and powers incident to the ownership of such securities, and
which, as the owner thereof, the Corporation might have possessed and exercised,
if present and (b) to sell any securities of corporations owned by the
Corporation (as long as the value of such securities does not constitute all or
substantially all of the assets of the Corporation). The Board of Directors by
resolution from time to time may confer like powers upon any other person or
persons.
ARTICLE V
Duties of Officers
1. Chairman of the Board. The Chairman of the Board shall preside at meetings
of the stockholders and of the Board of Directors. He shall sign (unless the
President, an Executive Vice President or a Vice President shall have signed)
certificates representing the stock of the Corporation authorized for issuance
by the Board of Directors or the Executive Committee. He shall have such other
duties as are given to him by these By-Laws or as from time to time may be
assigned to him by the Board of Directors or the Executive Committee.
2. Vice Chairman. The Vice Chairman, if the Board of Directors shall elect
one, shall perform and carry out such executive functions as may be assigned him
from time to time by the Chairman of the Board, the Board of Directors or the
Executive Committee.
3. President. The President shall be the Chief Executive Officer of the
Corporation and shall have general charge and control of all the property,
business and affairs of the Corporation and, subject to the supervision of the
Board of Directors, he shall have general supervision over the Corporation's
officers, employees and agents. He shall have all powers and perform all duties
incident to the office of a chief executive officer of a corporation and such
other duties as are given to him by these By-Laws or as from time to time may be
assigned to him by the Board of Directors or the Executive Committee. He may
enter into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation in the ordinary course of the Corporation's business.
11
The President shall, in the absence of the Chairman of the Board, preside at
meetings of the stockholders and of the Board of Directors.
4. Chief of Corporate Operations. The Chief of Corporate Operations shall
have operational authority over such departments, divisions and operations of
the Corporation and its subsidiaries as are given to him by these By-Laws or as
from time to time may be assigned to him by the Chief Executive Officer of the
Corporation, the Board of Directors or the Executive Committee.
5. Executive Vice President. Each Executive Vice President shall perform and
carry out such executive functions as may be assigned him from time to time by
the Chairman of the Board, the President, the Board of Directors or the
Executive Committee. At the request or absence or disability of the Chairman of
the Board and the President, the most senior Executive Vice President shall
perform and carry out the functions and duties of those officers.
6. Vice Presidents. Each Vice President shall have such powers and perform
such duties as may be assigned to him by the Chairman of the Board, the
President, an Executive Vice President, the Board of Directors or the Executive
Committee. At the request or in the absence or disability of the Chairman of the
Board, the President and the Executive Vice Presidents, the senior of the Senior
Vice Presidents (or if none shall have been designated, the senior of the Vice
Presidents present and able to act or such other Vice President as may be
designated by the Board of Directors) may perform all the duties of such
officers and, when so acting, shall have all the powers of and be subject to all
the restrictions upon such officers. Any Vice President may sign (unless the
Chairman of the Board, the President, an Executive Vice President or another
Vice President shall have signed) certificates representing stock of the
Corporation authorized for issuance by the Board of Directors or the Executive
Committee.
7. Treasurer. The Treasurer shall have the custody of all the funds and
securities of the Corporation. Whenever required by the Board of Directors, he
shall render an account of all his transactions as Treasurer and of the
financial condition of the Corporation. He shall give bond for the faithful
discharge of his duties if the Board of Directors so requires. He may sign
(unless an Assistant Treasurer or the Secretary or an Assistant Secretary shall
have signed) certificates representing stock of the Corporation authorized for
issuance by the Board of Directors or the Executive Committee. He shall perform,
in general, all duties incident to the office of a treasurer of a corporation
and such other duties as are given to him by these By-Laws or as from time may
be assigned to him by the Board of Directors, the Executive Committee, the
Chairman of the Board or the President.
8. Assistant Treasurers. The Board of Directors may, from time to time,
designate and elect one or more Assistant Treasurers who shall have such powers
12
and perform such duties as may be assigned to them by the Board of Directors,
the Executive Committee or the Treasurer. At the request or in the absence or
disability of the Treasurer, the Assistant Treasurer (or, if there are two or
more Assistant Treasurers, then the senior of the Assistant Treasurers present
and able to act or such other Assistant Treasurer as may be designed by the
Board of Directors) may perform all the duties of the Treasurer and, when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Treasurer.
9. Secretary. The Secretary shall attend to the giving and serving of all
notices of the Corporation. He shall keep or cause to be kept a record of the
proceedings of the meetings of the stockholders and of the Board of Directors in
books kept for that purpose. He shall be the custodian of the seal of the
Corporation, and cause such seal (or a facsimile thereof) to be affixed to all
certificates representing the stock of the Corporation prior to the issuance
thereof and to all instruments the execution of which on behalf of the
Corporation under its seal shall have been duly authorized in accordance with
these By-Laws, and when so affixed he may attest the same. He shall have charge
of the records of the Corporation, including the stock books and such other
books, reports, statements and other documents as the Board of Directors may
direct to be kept or as are required by law to be kept, all of which shall at
all reasonable times be open to inspection by any director. He shall sign
(unless the Treasurer, an Assistant Treasurer or an Assistant Secretary shall
sign) certificates representing stock of the Corporation authorized for issuance
by the Board of Directors or the Executive Committee. He shall perform all
duties incident to the office of a secretary of a corporation and such other
duties as are given to him by these By-Laws or as from time to time may be
assigned to him by the Board of Directors, the Chairman of the Board or the
President.
10. Assistant Secretaries. The Board of Directors may, from time to time,
designate and elect one or more Assistant Secretaries who shall have such powers
and perform such duties as may be assigned to them by the Board of Directors or
the Secretary. At the request or in the absence of the Secretary, the Assistant
Secretary (or, if there are two or more Assistant Secretaries, then the senior
of the Assistant Secretaries present and able to act or such other Assistant
Secretary as may be designated by the Board of Directors) may perform all the
duties of the Secretary and, when so acting, shall have all the powers of and be
subject to all the restrictions upon the Secretary.
11. Delegation by Board of Directors. In the case of absence or inability to
act of any officer of the Corporation and of any person herein authorized to act
in his place, the Board of Directors or (in the case of any Vice President,
other than one designated as senior vice president, Assistant Vice President,
Assistant Treasurer or Assistant Secretary), the Chairman of the Board or
President may from time to time delegate the powers of such officer to any other
officer or any director or any other person so selected.
13
ARTICLE VI
Capital Stock
1. Certificates of Stock.
(a) All classes or series of stock of the Corporation may be issued in
uncertificated form. Notwithstanding the preceding sentence, every holder of
stock in the Corporation shall be entitled, upon his request, to have a
certificate, signed by, or in the name of the Corporation by, the Chairman of
the Board, the President, an Executive Vice President or any Vice President and
the Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary, certifying the number of shares owned by him in the Corporation. Any
or all signatures on the certificate may be a facsimile.
(b) Certificates representing shares of stock of the Corporation, if any,
shall be in such form as shall be approved by the Board of Directors.
(c) There shall be entered upon the stock books of the Corporation at the
time of issuance of each share the number of the certificate issued, the name of
the person owning the shares represented thereby, the number and class of such
shares, and the date of issuance thereof. Every certificate exchanged or
returned to the Corporation shall be marked "Cancelled", with the date of
cancellation.
2. Transfers of Stock. Upon surrender to the Corporation or the transfer agent
of the Corporation of a certificate representing shares, duly endorsed or
accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its books.
Subject to the provisions of the Certificate of Incorporation and these By-Laws,
the Board of Directors may prescribe such additional rules and regulations as it
may deem appropriate relating to the issue, transfer and registration of shares
of the Corporation.
ARTICLE VII
Corporate Seal
The Corporate Seal of the Corporation shall be circular in form and
shall bear the name of the Corporation, the year of incorporation and the words,
"Corporate Seal" and "Delaware". The form of the seal shall be subject to
alteration by the Board of Directors and the seal may be used by causing it or a
facsimile to be impressed or affixed or printed or otherwise reproduced. Any
officer or director of the Corporation shall have authority to affix the
corporate seal of the Corporation to any document requiring the same, and to
attest the same.
14
ARTICLE VIII
Indemnification and Insurance
1. Indemnification. Each person who has been or is threatened to be made a
party to any threatened, pending or completed action, suit or proceedings,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the Corporation, or
is serving or has served at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall be indemnified by the Corporation 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, and expenses (including attorneys' fees) incurred in
connection therewith may be advanced by the Corporation, all to the full extent
and in the manner permitted by Section 145 of the General Corporation Law of the
State of Delaware (or any other similar provision or provisions of applicable
law at the time in effect). Without in any way limiting the generality of the
foregoing, expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in Section 145 of the Delaware General Corporation
Law.
The indemnification provided hereby shall not be deemed exclusive of
any other rights to which those indemnified may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
2. Insurance. By action of the Board of Directors, notwithstanding any
interest of the Directors in such action, the Corporation may purchase and
maintain insurance, in such amounts as the Board may deem appropriate, on behalf
of any person who is or was a Director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
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 to indemnity him against
such liability under applicable provisions of law.
15
ARTICLE IX
Amendments
The By-Laws of the Corporation shall be subject to alteration,
amendment or repeal, and new By-Laws not inconsistent with any provision of the
Certificate of Incorporation or statute, may be made, either by the affirmative
vote of the holders of a majority in interest of the stockholders of the
Corporation present in person or by proxy at any annual or special meeting of
the stockholders and entitled to vote thereat a quorum being present, provided
that notice of such proposed action shall have been given in the call for the
meeting, or by the affirmative vote of a majority of the whole Board, given at
any regular or special meeting of the Board of Directors.
ARTICLE X
Business Combinations with Interested Stockholders
The Corporation hereby elects not to be governed by Section 203 of the
General Corporation Law relating to business combinations with interested
stockholders and, accordingly, shall not be governed by such Section 203. As and
to the extent required by Section 203 (b)(2) of the General Corporation Law,
this Article X shall not be further amended by the Board of Directors.
16