Exhibit (3) (b)
AMENDED AND RESTATED
BYLAWS
OF
MURRAY UNITED DEVELOPMENT CORP.
A DELAWARE CORPORATION
ARTICLE I
STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders
shall be held at such place either within or without the State of Delaware as
shall be designated from time to time by the board of directors or stated in the
notice of the meeting.
Section 2. Annual Meeting. Annual meetings of stockholders
shall be held at such time and place and for such purposes as may be designated
from time to time by the board of directors and stated in the notice of the
meeting, at which they shall elect by a plurality vote a board of directors and
transact such other business as may properly be brought before the meeting.
Section 3. Notice of Annual Meeting. Written notice of the
annual meeting stating the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting.
Section 4. Stockholder List. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, ether at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so 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
list shall presumptively determine the identity of the stockholders entitled to
vote at the meeting and the number of shares held by each of them.
Section 5. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise
prescribed by statute or by the certificate of incorporation, may be called by
the chairman of the board, the president or the secretary and shall be called by
the chairman of the board, the president or the secretary at the request in
writing of a majority of the board of directors, or at the request in writing of
stockholders owning 25% or more of the entire capital stock of the corporation
issued and outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting.
Section 6. Notice of Special Meetings. Written notice of a
special meeting stating the place, date and hour of the meeting and 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.
Section 7. 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
statute or by the 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. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. 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 8. Voting and Proxies. When a quorum is
present at any meeting, except with respect to the election of directors, the
vote of the holders of a majority of the stock having voting power present in
person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes or of the certificate of incorporation, a different vote is required,
in which case such express provision shall govern and control the decision of
such question. Directors shall be elected by a plurality of the votes cast.
Unless otherwise provided in the certificate of incorporation, each stockholder
shall be entitled to one vote for each share of the capital stock having voting
power held by such stockholder. Each stockholder entitled to vote may vote in
person or by a proxy granted in accordance with Delaware
law, but no proxy shall be voted on after three years from its date, unless the
proxy provides for a longer periods.
Section 9. Conduct of Meetings. At every meeting of
stockholders. the chairman of the board of directors or, if a chairman has not
been appointed or is absent, the president, or, if the president is absent, the
most senior vice president present, or in the absence of any such officer, a
chairman of the meeting chosen by a majority in interest of the stockholders
entitled to vote, present in person or by proxy, shall act as chairman. The
secretary, or, in his absence, the person appointed by the chairman of the
meeting, shall act as secretary of the meeting. The chairman of the meeting
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
necessary, appropriate or convenient for the proper conduct of the meeting.
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 rules of parliamentary procedure.
Section 10. Inspectors of Election. In advance of
any meeting of stockholders, the board of directors, or if they do not do so,
the chairman of the meeting, shall appoint one or more inspectors to act at the
meeting and make a written report thereof. Each inspector, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the best of
his ability. The inspectors shall (1) ascertain the number of shares outstanding
and the voting power of each, (2) determine the shares represented at a meeting
and the validity of proxies and ballots, (3) count all votes and ballots, (4)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (5) certify their
determination of the number of shares represented at the meeting and their count
of all votes and ballots. The inspectors may appoint or retain other persons or
entities to assist the inspectors in the performance of the duties of the
inspectors.
The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted be the inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
This Section 10 shall not apply to the corporation if it
does not have a class of voting stock that is: (1) listed on a national
securities exchange, (2) authorized for quotation on an inter-dealer quotation
system of a registered national securities association, or (3) held of record by
more than 2,000 stockholders.
Section 11. Written Consent. Unless otherwise provided
in the certificate of incorporation, any action required to be taken at any
annual or special meeting of stockholders of the corporation or any action which
may be taken at any annual or special meeting of such stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent 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 less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
Article II
DIRECTORS
Section 1. Number and Term of Office. The number of directors
which shall constitute the whole board shall be not less than two (2) nor more
than nine (9) until changed by amendment to the certificate of incorporation or
by a bylaw amending this Section duly adopted by the stockholders entitled to
vote or by the board of directors. The exact number of directors shall be fixed
from time to time, within the limits specified herein or in the certificate of
incorporation, by a bylaw or amendment thereof duly adopted by the stockholders
or the board of directors. The directors shall be elected at the annual meeting
of the stockholders, except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
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 chosen shall hold
office until the next annual election and until their successors are duly
elected and shall qualify, unless sooner displaced. A vacancy in the board of
directors shall be deemed to exist under this Section in the case of the death,
resignation or removal of any director and no decrease in the number of
directors shall shorten the term of any incumbent director.
Section 3. 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 statute or by the certificate of
incorporation or by these bylaws directed or required to be exercised or done by
the stockholders.
Section 4. Regular Meetings. Regular meetings of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board.
Section 5. Special Meetings. Special meetings of the board of
directors for any purpose or purposes may be called at any time by one-third of
the directors then in office (rounded up to the nearest whole number, or by the
chairman of the board, the president or the secretary. Notice of the time and
place of special meetings shall be given orally or in writing, by telephone,
facsimile, telegraph or telex, during normal business hours, at least
forty-eight (48) hours before the date and time of the meeting or if in writing
to each director by first class mail, charges prepaid, at least five (5) days,
or by air courier, charges prepaid, at least three (3) days, before the date of
the meeting. A notice need not specify the purpose of any regular or special
meeting of the board of directors.
Section 6. Quorum. At all meetings of the board a majority of
the authorized number of directors 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, except as
may be otherwise specifically provided by statute or by the certificate of
incorporation. 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, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 7. Written Consent. Unless otherwise restricted by the
certificate of incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee.
Section 8. Participation in Meetings by Conference Telephone .
Unless otherwise restricted by the certificate of incorporation or these bylaws,
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
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 9. Committees of the Board of Directors. 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. 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.
ln the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
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; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
bylaws of the corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors. Each committee
shall keep regular minutes of its meetings and report the same to the board of
directors when required.
Section 10. Compensation Of Directors. Unless otherwise
restricted by the certificate of incorporation or these bylaws, the board of
directors shall have the authority to fix the compensation of directors. No such
compensation shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings or serving on such committees.
Section 11. Removal Of Directors. Unless otherwise
restricted by the certificate of incorporation or by law, any
director or the entire board of directors may be removed, with or without cause,
by the holders of a majority of shares entitled to vote at an election of
directors.
ARTICLE III
NOTICES
Section 1. Notices. Whenever, under the provisions of the
statutes or of the certificate of incorporation or of these bylaws, notice is
required to be given to any director or stockholder, 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 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 in
the manner set forth in Section 5 of Article II of these bylaws.
Section 2. Waiver. Whenever any notice is required to be
given under the provisions of the statutes or of the certificate of
incorporation or of these bylaws, a waiver thereof, in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE IV
OFFICERS
Section 1. Generally. The officers of the corporation shall be
chosen by the board of directors and shall be a chairman of the board and or a
chief executive officer, a president, a secretary and a treasurer or chief
financial officer. The board of directors may also appoint one or more
vice-presidents, one or more assistant secretaries and assistant treasurers, and
such other officers as they shall deem necessary, to exercise such powers and to
perform such duties as the board shall from time to time determine. Any number
of offices may be held by the same person, unless the certificate of
incorporation or these bylaws otherwise provide. The remuneration of officers of
the corporation shall be fixed by the board of directors.
Section 2. Term of Office and Removal. The officers of the
corporation shall hold office until their successors are chosen and qualify. Any
officer elected or appointed by tho board of directors may be removed at any
time by the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
Section 3. Chairman of the Board. The chairman of the board
shall preside at all meetings of stockholders and of the board of directors. The
board at its discretion may designate the chairman of the board as chief
executive officer of the corporation, in which event the chairman of the board
shall be charged with and shall have the control and supervision of all its
business and operations.
Section 4. Chief Executive Officer. The chief executive
officer of the corporation shall have general supervision, direction and control
of the business of the corporation and shall, in the absence of the chairman of
the board, perform the duties of the chairman of the board. The chief executive
officer shall have such other powers and duties as may be prescribed by the
board of directors or these bylaws.
Section 5. President. The president of the corporation shall
be the chief operating officer of the corporation and shall have responsibility
for the day-to-day operation and management of the business of the corporation.
The president shall have such other powers and duties as may be prescribed by
the board of directors or these bylaws.
Section 6. Vice Presidents. Each vice president shall have
such powers and duties as may be delegated to him or her by the board of
directors. Any vice president may be designated as executive, senior or
assistant. One vice president shall be designated by the board to perform the
duties and exercise the powers of the president in the event of the president's
absence or disability.
Section 7. Chief Financial Officer. The chief financial
officer shall have general supervision, direction and control of the financial
affairs of the corporation, including financial planning and budgeting, and, in
the absence of the office of treasurer, shall perform the duties of the
treasurer. The chief financial officer shall have such other powers and duties
as may be prescribed by the board of directors or these bylaws.
Section 8. Treasurer. The treasurer shall have the
responsibility for maintaining the financial records of the corporation and
shall have custody of all monies and securities of the corporation. He shall
make such disbursements of the funds of the corporation as are authorized and
shall render from time to time an account of all such transactions and of the
financial condition of the corporation. The treasurer shall also perform such
other duties as the board of directors may from time to time prescribe and, in
the absence of the office of chief financial officer, he shall perform the
duties of chief financial officer.
Section 9. Secretary. The secretary shall issue all authorized
notices for, and shall keep minutes of, all meetings of the stockholders and the
board of directors. He shall have charge of the corporate books and shall
perform such other duties as the board of directors may from time to time
prescribe.
ARTICLE V
STOCK
Section 1. Certificates of Stock. Every holder of stock in the
corporation shall be entitled to have a certificate signed by or in the name of
the corporation by the chairman of the board, the chief executive officer, the
president or a vice-president and the treasurer or an assistant treasurer or the
secretary or an assistant secretary of the corporation, certifying the number of
shares owned by him in the corporation.
Certificates may be issued for partly paid shares and in such
case upon the face or back of the certificates issued to represent any such
partly paid share, the total amount of the consideration to be paid therefor,
and the amount paid thereon shall be specified. Upon the declaration of any
dividend upon fully paid shares, the corporation shall declare a dividend on
partly paid shares of the same class, but only upon the basis of the percentage
of the consideration actually paid thereon.
If the corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise required by law, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof, and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Facsimile Signatures. Any of or all the signatures
on the certificate may be facsimile. ln case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
Section 3. Transfer of Stock. Transfers of stock shall be made
only upon the transfer books of the corporation kept at an office of the
corporation or by transfer agents designated to transfer shares of the stock of
the corporation. Except where a certificate is issued in accordance with Section
4 of this Article V, an outstanding certificate for the number of shares
involved shall be surrendered for cancellation before a new certificate is
issued therefor.
Section 4. Lost, Stolen or Destroyed Certificates. ln the
event of the loss, theft or destruction of any certificate of stock, another may
be issued in its place pursuant to such regulations as the board of directors
may establish concerning proof of such loss, theft or destruction and concerning
the giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations. The issue, transfer, conversion
and registration of certificates of stock shall be governed by such
other regulations as the board of directors may establish.
Section 6. Record Date. ln 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 of directors may fix,
in advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
ARTICLE VI
INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS
Section 1. Right to Indemnification. The corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the corporation or is
or was serving at the request of the corporation as a director, officer,
trustee, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, against all liability and loss suffered and expenses reasonably incurred
by such person in connection therewith. The corporation shall indemnify a person
in connection with a proceeding initiated by such person only if the proceeding
was authorized by the board of directors of the corporation. The corporation may
provide indemnification to employees and agents of the corporation with the same
scope and effect as the indemnification and advancement of expenses provided in
this Article.
Section 2. Payment of Expenses. The corporation shall pay the
expenses incurred by a director or officer of the corporation in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a director or officer in his capacity as a
director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the director or officer to repay
all amounts advanced if it should be ultimately determined that the director or
officer is not entitled to be indemnified under this Article or otherwise.
Section 3. Right to Bring Suit. If a claim for
indemnification or payment of expenses under this Article by a director or
officer of the corporation is not paid in full within 30 days after a written
claim therefor has been received by the corporation, the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. ln any
such action the corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification or payment of expenses under
applicable law.
Section 4. Rights Not Exclusive. The rights conferred on any
person by this Article shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
corporation's certificate of incorporation, these bylaws, agreement, vote of
stockholders or disinterested directors or otherwise. The corporation shall have
the authority to enter into such agreements as the board of
directors deems appropriate for the indemnification of present or future
directors, officers, employees and agents of the corporation in connection with
their service to the corporation or any other corporation, partnership, joint
venture, trust or other enterprise, including any employee benefit plan, to
which such person is providing services at the request of the corporation.
Section 5. Effect of Modification. Any repeal or modification
of the foregoing provisions of this Article shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
Section 6. Successors. The rights conferred on any person by
this Article shall continue as to a person who has ceased to be a director,
officer, employee or agent of the Corporation and shall inure to the benefit of
such person's heirs, executors and administrators.
Section 7. Definition of Corporation. For purposes of this
Article, reference 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 and 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 or other enterprise, shall stand in the same position under the provisions
of this Article with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
ARTICLE VII
AMENDMENTS
These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or, if provided in the certificate of
incorporation, by the board of directors. If the power to adopt, amend or repeal
bylaws is conferred upon the board of directors by the certificate of
incorporation, it shall not divest or limit the power of the stockholders to
adopt, amend or repeal bylaws.