BY-LAWS
OF
MIPS TECHNOLOGIES, INC.
ARTICLE I
Offices
The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Corporation may also
have one or more offices at such other places, either inside or outside of the
State of Delaware, as the Board of Directors may from time to time determine or
as the business of the Corporation may require. The books and records of the
Corporation may be kept (subject to the provisions of the laws of the State of
Delaware) at any place, either inside or outside of the State of Delaware, as
from time to time may be determined by the Board of Directors.
ARTICLE II
Stockholders
Section 1. Place of Meetings. Meetings of stockholders (whether annual or
special) shall be held at such place, either inside or outside of the State of
Delaware, as the Board of Directors shall from time to time determine.
Section 2. Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held on such date and at such time as may be fixed by
resolution of the Board of Directors.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Corporation's Restated Certificate of Incorporation, as amended from time to
time (the "Charter"), and subject to any preferential rights of any outstanding
series of Preferred Stock (as defined in the Charter), special meetings of
stockholders of the Corporation for any purpose or purposes may be called only
by the Chairman of the Board of Directors, the President, or, at the request in
writing of a majority of the Board of Directors, any officer. Such request shall
state the purpose or purposes of the proposed meeting. In addition, prior to the
Trigger Date (as defined in the Charter), the Corporation shall call a special
meeting of stockholders of the Corporation promptly upon request by Silicon
Graphics, Inc., a Delaware corporation, or any of its affiliates, in each case
if such entity is a stockholder of the Corporation.
Section 4. Notice of Meetings. Except as otherwise provided by law, written
or printed notice, stating the place, day and hour of the meeting and the
purpose or purposes for which the meeting is called shall be delivered by the
Corporation not less than ten (10) calendar days nor more than sixty (60)
calendar days before the date of the meeting, either personally or by mail, to
each stockholder of record entitled to vote at such meeting. Meetings may be
held without notice
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if all stockholders entitled to vote are present, or if notice is waived by
those not present in accordance with Section 2 of Article X of these By-laws.
Any previously scheduled meeting of the stockholders may be postponed, and any
special meeting of the stockholders may be canceled, by resolution of the Board
of Directors upon public notice given prior to the date previously scheduled for
such meeting of stockholders.
Section 5. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the stockholders may be made
at an annual meeting of stockholders (A) pursuant to the Corporation's
notice of meeting delivered pursuant to Section 4 of this Article II, (B)
by or at the direction of the Board of Directors, (C) by any stockholder of
the Corporation who was a stockholder of record at the time of the giving
of the notice provided for in this Section 5, who is entitled to vote at
the meeting and who complies with the notice procedures set forth in this
Section 5, or (D) prior to the Trigger Date, by Silicon Graphics, Inc., a
Delaware corporation, or any of its affiliates that is a stockholder of the
Corporation.
(ii) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (C) of paragraph
(a)(i) of this Section 5, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other
business must be a proper subject for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than sixty (60) days nor more
than ninety (90) days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date
of the annual meeting is advanced by more than thirty (30) days or delayed
by more than sixty (60) days from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the
ninetieth day prior to such annual meeting and not later than the close of
business on the later of the sixtieth day prior to such annual meeting or
the tenth day following the day on which public announcement of the date of
such meeting is first made by the Corporation. For purposes of determining
whether a stockholder's notice shall have been delivered in a timely manner
for the annual meeting of stockholders in 1999, the first anniversary of
the previous year's meeting shall be deemed to be October 29, 1999. In no
event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as
described above. Such stockholder's notice shall set forth (A) as to each
person whom the stockholder proposes to nominate for election or reelection
as a director all information relating to such person that is required to
be disclosed in solicitations of proxies for election of directors in an
election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Rule 14a-11 thereunder (including such person's
written consent to being named in the proxy
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statement as a nominee and to serving as a director if elected); (B) as to
any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (C) as
to the stockholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made, (1) the name and address
of such stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (2) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(iii) Notwithstanding anything in the second sentence of paragraph
(a)(ii) of this Section 5 to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there is
no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors made by
the Corporation at least seventy (70) days prior to the first anniversary
of the preceding year's annual meeting, a stockholders's notice required by
this Section 5 shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day following
the day on which such public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting pursuant to Section 4 of
this Article II. Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporation's notice of meeting (i) by or at the
direction of the Board of Directors, (ii) by any stockholder of the Corporation
who was a stockholder of record at the time of the giving of the notice provided
for in this Section 5, who is entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 5, or (iii) prior to the
Trigger Date, by Silicon Graphics, Inc., a Delaware corporation, or any of its
affiliates that is a stockholder of the Corporation. In the event that the
Corporation calls a special meeting of stockholders for the purpose of electing
one or more directors to the Board of Directors, any stockholder may nominate
such person or persons (as the case may be), for election to the Board of
Directors, if the stockholder's notice required by paragraph (a)(ii) of this
Section 5 shall be delivered to the Secretary of the Corporation at the
principal executive offices of the Corporation not earlier than the ninetieth
day prior to such special meeting and not later than the close of business on
the later of the sixtieth day prior to such special meeting or the tenth day
following the day on which public announcement by the Corporation is first made
of the date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
(c) General.
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(i) Only persons who are nominated in accordance with the procedures
set forth in this Section 5 shall be eligible to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with the procedures set
forth in this Section 5. Except as otherwise provided by law, the Charter
or these By-laws, the chairman of the meeting shall have the power and duty
to determine whether a nomination or any business proposed to be brought
before the meeting was made in accordance with this Section 5 and, if any
proposed nomination or business is not in compliance with this Section 5,
to declare that such defective proposal or nomination shall be disregarded.
(ii) For purposes of this Section 5, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 5, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 5. Nothing in this Section 5 shall be
deemed to affect any rights (A) of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act or (B) of the holders of any series or Preferred Stock to
elect directors.
Section 6. Quorum. Except as otherwise provided by law or in the Charter,
the holders of a majority of the voting power of all outstanding shares of the
Corporation entitled to vote generally in the election of directors (the "Voting
Stock"), represented in person or by proxy, shall constitute a quorum at a
meeting of stockholders, except that when specified business is to be voted on
by a class or series of stock voting as a class, the holders of a majority of
the shares of such class or series shall constitute a quorum of such class or
series for the transaction of such business. At any meeting of stockholders at
which a quorum is not present, the person serving as chairman of the meeting or
the holders of a majority in interest of the stockholders present in person or
by proxy and who are entitled to vote on every matter that is to be voted on
without regard to class at such meeting may adjourn the meeting from time to
time. No notice of the time and place of adjourned meetings need by given except
as required by law.
Section 7. Organization and Conduct of Business. The Chairman of the Board
of Directors shall act as chairman of meetings of the stockholders. The Board of
Directors may designate any other officer or director of the Corporation to act
as chairman of any meeting in the absence of the Chairman of the Board of
Directors, and the Board of Directors may further provide for determining who
shall act as chairman of any stockholder's meeting in the absence of the
Chairman of the Board of Directors and such designee. The person serving as
chairman of any meeting of stockholders shall determine the order of business
and the procedure at the meeting, including such regulation of the manner of
voting and the conduct of discussion as seem to him or her in order.
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The Secretary of the Corporation shall act as secretary of all meetings of
the stockholders, but in the absence of the Secretary the presiding officer may
appoint any other person to act as secretary of any meeting.
Section 8. Proxies and Voting. At any meeting of stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument executed in writing (or in such manner prescribed by the General
Corporation Law of the State of Delaware) by the stockholder, or by such
person's duly authorized attorney in fact.
Election of directors at all meeting of the stockholders at which directors
are to be elected shall be by ballot, and, subject to the rights of the holders
of any series of Preferred Stock to elect directors, a plurality of the votes
cast thereat shall elect directors. Except as otherwise provided by law, the
Charter and these By-laws and subject to the rights of the holders of any series
of Preferred Stock, in all matters other than the election of directors, the
affirmative vote of a majority of the voting power of the shares present in
person or represented by proxy at the meeting and entitled to vote on the matter
shall be the act of the stockholders.
Section 9. Inspectors of Election. The Board of Directors may, and to the
extent required by law, shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting, decide upon the
qualification of voters, count the votes, decide the results and make a written
report thereof in accordance with the General Corporation Law of the State of
Delaware. The Board of Directors may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the person presiding at
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspector(s)
shall have the duties prescribed by law.
Section 10. No Stockholder Action by Written Consent. Effective as of the
Trigger Date, any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of such holders and may not be effected by any consent in writing by such
holders.
ARTICLE III
Board of Directors
Section 1. Number and Term of Office. Subject to the rights, if any, of
holders of preferred stock of the Corporation, the number of directors of the
Corporation shall be fixed from time to time exclusively by resolution of the
Board of Directors adopted by the affirmative vote of directors constituting not
less than a majority of the Whole Board, but shall consist of not more than ten
(10) nor less than three (3) directors. The directors, other than those who may
be elected by the holders of any class or series of preferred stock of the
Corporation, shall be classified, with respect to the time they severally hold
office, into three classes, as nearly equal in
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number as possible, one class to be initially elected for a term expiring at the
annual meeting of stockholders to be held in 1999, another class to be initially
elected for a term expiring at the annual meeting of stockholders to be held in
2001, and another class to be initially elected for a term expiring at the
annual meeting of stockholders to be held in 2001, with each director to serve
until his or her successor shall have been elected and shall have qualified. At
each succeeding annual meeting of stockholders, directors elected to succeed
those directors whose terms then expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after their
election, with each director to serve until his or her successor shall have been
elected and shall have qualified.
For purposes of these By-laws, the term "Whole Board" shall mean the total
number of directors that the Corporation would have if there were no vacancies
on the Corporation's Board of Directors.
Section 2. Meetings. Regular meetings of the Board of Directors may be held
at such place, either inside or outside of the State of Delaware, and at such
time, as may from time to time be designated by the Chairman of the Board of
Directors or resolution of the Board of Directors or as may be specified in the
call of any meeting. An annual meeting of the Board of Directors shall be held
on the same day as, and as soon as practicable following, the annual meeting of
stockholders or at such other time or place as shall be determined by the Board
of Directors at its regular meeting next preceding said annual meeting of
stockholders.
Special meetings of the Board of Directors may be held at any time on the
call of the Chairman of the Board of Directors, the President or a majority of
the Board of Directors then in office. The person or persons authorized to call
special meetings of the Board of Directors may fix the time and place of the
meetings. Meetings may be held at any time or place without notice if all the
directors are present or if those not present waive notice of the meeting in
writing.
Section 3. Notice of Meetings. Notice of the time and place of meetings of
the Board of Directors (excepting the annual meeting of directors) shall be
given to each director by the Secretary or an Assistant Secretary of the
Corporation by (i) mailing or sending via courier such notice not later than
during the second day preceding the day on which such meeting is to be held, or
(ii) by (a) sending a facsimile transmission or other form of electronic
communication containing such notice or (b) delivering such notice personally or
by telephone, in each case, not later than during the first day preceding the
day on which such meeting is to be held. Unless otherwise stated in the notice
thereof, any and all business may be transacted at any meeting.
Section 4. Quorum and Organization of Meetings. Subject to Section 5 of
this Article III, a whole number of directors equal to at least a majority of
the Whole Board 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 the directors present may adjourn the meeting from time
to time without further notice. The act of a majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors. The directors present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the
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withdrawal of enough directors to leave less than a quorum.
Meetings shall be presided over by the Chairman of the Board of Directors
or, in his or her absence, by such other person as the Board of Directors may
designate or the members present may select.
Section 5. Vacancies. Subject to the rights, if any, of holders of
preferred stock of the Corporation, and unless the Board of Directors otherwise
determines, any vacancy occurring in the Board of Directors caused by death,
resignation, increase in number of directors or otherwise may be filled by the
affirmative vote of a majority of the remaining members of the Board of
Directors, though less than a quorum, or by a sole remaining director, and
except as otherwise provided by law, any such vacancy may not be filled by the
stockholders of the Company. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or the vacancy
occurred and until such director's successor shall have been duly elected and
qualified. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
Section 6. Powers. In addition to the powers and authorities by these
By-laws expressly conferred upon them, the Board of Directors shall have and may
exercise all such powers of the Company and do all such lawful acts and things
that are not by statute, the Charter or these By-laws directed or required to be
exercised or done by the stockholders.
Section 7. Reliance upon Books, Reports and Records. Each director, each
member of any committee designated by the Board of Directors and each officer,
in the performance of his or her duties, shall be fully protected in relying in
good faith upon such information, opinions, reports or statements presented to
the Corporation by any of its officers or employees, or by committees of the
Board of Directors, or by any other person, as to matters such director, member
or officer, as the case may be, reasonably believes are within such person's
professional or expert competence and who has been selected with reasonable care
by the Board of Directors or by any such committee, or in relying in good faith
upon other records of the Corporation.
Section 8. Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
services as members of committees of the Board of Directors; provided, however,
that nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 9. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Charter or these By-laws, 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 such committee by means of a conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to
this Section 8 shall constitute presence in person at such meeting.
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Section 10. Actions by Written Consent. 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 of Directors 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 of Directors or
committee.
ARTICLE IV
Committees of the Board of Directors
Section 1. Committees of the Board of Directors. There are hereby
established as committees of the Board of Directors: an Audit Committee and a
Compensation Committee, each of which shall have the powers and functions set
forth in Sections 2 and 3 hereof, respectively, and such additional powers as
may be delegated to it by the Board of Directors. The Board of Directors may
from time to time establish additional standing committees or special committees
of the Board of Directors, each of which shall have such powers and functions as
may be delegated to it by the Board of Directors. The Board of Directors may
abolish any committee established by or pursuant to this Section 1 as it may
deem advisable. Each such committee shall consist of two or more directors, the
exact number being determined from time to time by the Board of Directors.
Designations of the chairman and members of each such committee, and, if
desired, a vice chairman and alternates for members, shall be made by the Board
of Directors. In the absence or disqualification of any member of any committee
and any alternate member in his or her place, the member or members of the
committee present at the meeting and not disqualified from voting whether or not
he or she or they constitute a quorum, may by unanimous vote appoint another
member of the Board of Directors to act at the meeting in the place of the
absent or disqualified member. Each committee shall have a secretary who shall
be designated by its chairman. A vice chairman of a committee shall act as the
chairman of the committee in the absence or disability of the chairman. Nothing
herein shall be deemed to prevent the Board of Directors from appointing one or
more committees consisting in whole or in part of persons who are not directors
of the Corporation; provided, however, that no such committee shall have or may
exercise any authority of the Board of Directors.
Section 2. Audit Committee. The Audit Committee shall select and engage, on
behalf of the Corporation, independent public accountants to (a) audit the books
of account and other corporate records of the Corporation and (b) perform such
other duties as the Audit Committee may from time to time prescribe. The Audit
Committee shall transmit financial statements certified by such independent
public accountants to the Board of Directors after the close of each fiscal
year. The selection of independent public accountants for each fiscal year shall
be made in advance of the annual meeting of stockholders in such fiscal year and
shall be submitted for ratification or rejection at such meeting. The Audit
Committee shall confer with such accountants and review and approve the scope of
the audit of the books of account and other corporate records of the Company.
The Audit Committee shall have the power to confer with and direct the officers
of the Corporation to the extent necessary to review the internal controls,
accounting practices, financial structure and financial reporting of the
Corporation. From time to
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time the Audit Committee shall report to and advise the Board of Directors
concerning the results of its consultation and review and such other matters
relating to the internal controls, accounting practices, financial structure and
financial reporting of the Corporation as the Audit Committee believes merit
review by the Board of Directors. The Audit Committee also shall perform such
other functions and exercise such other powers as may be delegated to it from
time to time by the Board of Directors.
Section 3. Compensation Committee. The Compensation Committee shall fix
from time to time the salaries of members of the Board of Directors who are
officers or employees of the Corporation and of all Senior Executive Vice
Presidents, Executive Vice Presidents and Senior Vice Presidents of the
Corporation. It also shall perform such functions as may be delegated to it
under the provisions of any bonus, supplemental compensation, special
compensation or stock option plan of the Corporation.
Section 4. Rules and Procedures. Each committee may fix its own rules and
procedures and shall meet at such times and places as may be provided by such
rules, by resolution of the committee or by call of the chairman or vice
chairman of such committee. Notice of meeting of each committee, other than of
regular meetings provided for by its rules or resolutions, shall be given to
committee members. The presence of a majority of its members, but not less than
two, shall constitute a quorum of any committee, and all questions shall be
decided by a majority vote of the members present at the meeting. All action
taken at each committee meeting shall be recorded in minutes of the meeting.
Section 5. Application of Article. Whenever any provision of any other
document relating to any committee of the Corporation named therein shall be in
conflict with any provision of this Article IV, the provisions of this Article
IV shall govern, except that if such other document shall have been approved by
the stockholders or by the Board of Directors, the provisions of such other
document shall govern.
ARTICLE V
Officers
Section 1. Officers. The officers of the Company shall include a Chairman
of the Board of Directors, who shall be chosen from among the directors, a
President, a Chief Financial Officer, one or more Executive Vice Presidents, one
or more Senior Vice Presidents, one or more Vice Presidents, a Treasurer, a
General Counsel and a Secretary, each of whom shall be elected by the Board of
Directors to hold office until his or her successor shall have been chosen and
shall have qualified. The Board of Directors, the Chairman of the Board of
Directors and the Chief Executive Officer may elect or appoint one or more
Controllers, one or more Assistant Vice Presidents, one or more Assistant
Treasurers, one or more Assistant General Counsels and one or more Assistant
Secretaries, and the Board of Directors may elect or appoint such other officers
as it may deem necessary, or desirable, each of whom shall have such authority,
shall perform such duties and shall hold office for such term as may be
prescribed by the Board of Directors from time to time. Any person may hold at
one time more than one office, excepting
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that the duties of the President and Secretary shall not be performed by one
person.
Section 2. Chairman of the Board of Directors. The Chairman of the Board of
Directors shall be the Chief Executive Officer of the Corporation. Subject to
the provisions of these By-laws and to the direction of the Board of Directors,
he or she shall have ultimate authority for decisions relating to the general
management and control of the affairs and business of the Corporation and shall
perform all other duties and exercise all other powers commonly incident to the
position of Chief Executive Officer or which are or from time to time may be
delegated to him or her by the Board of Directors, or which are or may at any
time be authorized or required by law. He or she shall preside at all meetings
of the Board of Directors. He or she shall make reports to the Board of
Directors and stockholders, and shall see that all orders and resolutions of the
Board of Directors and any committee thereof are carried into effect. The
Chairman of the Board may also serve as President, if so elected by the Board of
Directors. The Board of Directors may also elect a Vice-Chairman to act in the
place of the Chairman upon his or her absence or inability to act.
Section 3. President. Subject to the provisions of these By-laws and to the
direction of the Board of Directors and of the Chief Executive Officer, the
President shall have such powers and shall perform such duties as from time to
time may be delegated to him or her by the Board of Directors or by the Chief
Executive Officer, or which are or may at any time be authorized or required by
law.
Section 4. Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents. Each of the Executive Vice Presidents, each of the Senior Vice
Presidents and each of the other Vice Presidents shall have such powers and
shall perform such duties as may be delegated to him or her by the Board of
Directors, the Chairman of the Board of Directors, the President or such other
officer or officers to whom he or she is directly responsible.
Section 5. Treasurer and Assistant Treasurer. The Treasurer, subject to the
direction of the Board of Directors, shall have the care and custody of all
funds and securities of the Corporation. When necessary or proper he or she
shall endorse on behalf of the Corporation, for collection, checks, notes and
other obligations, and shall deposit all funds of the Corporation in such banks
or other depositaries as may be designated by the Board of Directors or by such
officers or employees as may be authorized by the Board of Directors so to
designate. He or she shall perform all acts incident to the office of Treasurer,
subject to the control of the Board of Directors and such other officer or
officers to whom he or she is directly responsible. He or she may be required to
give a bond for the faithful discharge of his or her duties, in such sum and
upon such conditions as the Board of Directors may require.
At the request and direction of the Treasurer or, in the case of his or her
absence or inability to act, any Assistant Treasurer may act in his or her
place. In the case of the death of the Treasurer, or in the case of his or her
absence or inability to act without having designated an Assistant Treasurer to
act temporarily in his or her place, the Assistant Treasurer so to perform the
duties of the Treasurer shall be designated by the Chairman of the Board of
Directors, the
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President or an Executive Vice President.
Section 6. Secretary and Assistant Secretary. The Secretary shall keep full
and accurate minutes of the meetings of the stockholders and of the Board of
Directors in the proper record book of the Corporation provided therefor, and,
when required, the minutes of meetings of the committees, and shall be
responsible for the custody of all such minutes. Subject to the direction of the
Board of Directors, the Secretary shall have custody of the stock ledgers and
documents of the Corporation. He or she shall have custody of the corporate seal
of the Corporation and shall affix and attest such seal to any instrument whose
execution under seal shall have been duly authorized. He or she shall give due
notice of meetings and, subject to the direction of the Board of Directors,
shall perform all other duties commonly incident to his or her office or as
properly required of him or her by the Chairman of the Board of Directors and
such other officer or officers to whom he or she is directly responsible and
shall enjoy all other powers commonly incident to his or her office.
At the request and direction of the Secretary or, in the case of his or her
absence or inability to act, any Assistant Secretary may act in his or her
place. In the case of the death of the Secretary, or in the case of his or her
absence or inability to act without having designated an Assistant Secretary to
act temporarily in his or her place, the Assistant Secretary or other person so
to perform the duties of the Secretary shall be designated by the Chairman of
the Board of Directors, the President or an Executive Vice President.
Section 7. Assistant Vice Presidents and Other Officers. Each assistant
vice president and other officers shall perform such duties commonly incident to
his or her office or as properly required of him or her by the Chairman of the
Board of Directors and such other officer or officers to whom he or she is
directly responsible.
Section 8. General Counsel. The General Counsel shall have general
supervision of all matters of a legal nature concerning the Corporation. He or
she shall perform all such duties commonly incident to his or her office or as
properly required of him or her by the Chairman of the Board of Directors and
such other officer or officers to whom he or she is directly responsible.
Section 9. Salaries. Salaries of officers, agents or employees shall be
fixed from time to time by the Board of Directors or by such committee or
committees, or person or persons, if any, to whom such power shall have been
delegated by the Board of Directors. An employment contract, whether with an
officer, agent or employee, if expressly approved or specifically authorized by
the Board of Directors, may fix a term of employment thereunder; and such
contract, if so approved or authorized, shall be valid and binding upon the
Corporation in accordance with the terms thereof, provided that this provision
shall not limit or restrict in any way the right of the Corporation at any time
to remove from office, discharge or terminate the employment of any such
officer, agent or employee prior to the expiration of the term of employment
under any such contract.
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Section 10. Vacancies. A vacancy in any office filled by election of the
Board of Directors may be filled by the Board of Directors by the election of a
new officer who shall hold office, subject to the provisions of this Article V,
until the regular meeting of the directors following the next annual meeting of
the stockholders and until his or her successor is elected.
Section 11. Removal or Discharge. Any officer may be removed or discharged
by the Chairman of the Board of Directors at any time excepting an officer who
is also a director. Any officer who also is a director may be discharged at any
time by the Board of Directors.
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ARTICLE VI
Resignations
Any director or officer of the Corporation, whether elected or appointed,
may resign at any time by giving written notice of such resignation to the
Chairman of the Board of Directors, the President, or the Secretary, and such
resignation shall be deemed effective as of the close of business on the date
said notice is received by the Chairman of the Board of Directors, the
President, or the Secretary, or at such later time as is specified therein. No
formal action shall be required of the Board of Directors or the stockholders to
make any such resignation effective.
ARTICLE VII
Capital Stock; Dividends; Seal
Section 1. Stock Certificates and Transfers. The interest of each
stockholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Corporation may from time
to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by such person's attorney, upon surrender for cancellation of certificates for
at least the same number of shares, with an assignment and power of transfer
endorsed thereon or attached thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or its agents may reasonably
require. The certificates of stock shall be numbered and signed by the Chairman
of the Board of Directors, the President, an Executive Vice President, a Senior
Vice President or a Vice President, and also by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary. Any and all signatures
may be facsimiles. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate has
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 or
she were such officer, transfer agent or registrar at the date of issue.
Section 2. Lost, Destroyed or Stolen Certificate. Any person claiming a
stock certificate in lieu of one lost, destroyed or stolen, shall give the
Corporation an affidavit as to his, her or its ownership of the certificate and
of the facts which go to prove that it has been lost, destroyed or stolen. If
required by the Board of Directors or any financial officer of the Corporation,
he, she or it also shall give the Corporation a bond, in such form as may be
approved by the Board of Directors or such financial officer, sufficient to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss of the certificate or the issuance of a new
certificate. A new certificate shall be issued upon receipt of such an affidavit
and, if required, upon the giving of such a bond.
Section 3. Record of holder of Shares. The Corporation shall be entitled to
treat the holder of record of any share or shares as the holder in fact thereof,
and accordingly shall not be bound to recognize any equitable or other claims to
or interest in such shares on the part of any other person, whether or not it
shall have express or other notice thereof, save as expressly provided by the
General Corporation Law of the State of Delaware. The Corporation shall be
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entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends and to vote as such owner.
Section 4. Dividends. The Board of Directors may from time to time declare,
and the Corporation may pay, dividends on its outstanding shares of capital
stock in the manner and upon the terms and conditions provided by law and the
Charter.
Section 5. Corporate Seal. The corporate seal shall be in such form as
shall from time to time be approved by the Board of Directors. If and when so
authorized by the Board of Directors, a duplicate of the seal may be kept and
used by the Secretary or Treasurer or by any Assistant Secretary or Assistant
Treasurer.
ARTICLE VIII
Execution of Contracts and Other Documents
Section 1. Contracts, etc. Except as otherwise required by law, the Charter
or these By-laws, such officers, employees or agents of the Corporation as shall
be specified by the Board of Directors shall sign, in the name and on behalf of
the Corporation, all deeds, bonds, contracts, mortgages and other instruments or
documents, the execution of which shall be authorized by the Board of Directors;
and such authority may be general or confined to specific instances. Except as
so authorized by the Board of Directors, no officer, agent or employee of the
Corporation shall have power or authority to bind the Corporation by any
contract or engagement or to pledge, mortgage, sell or otherwise dispose of its
credit or any of its property or to render it pecuniarily liable for any purpose
or in any amount.
Section 2. Checks, Drafts, etc. Except as otherwise provided in these
By-laws, all checks, drafts, notes, bonds, bills of exchange or other orders,
instruments or obligations for the payment of money shall be signed by such
officer or officers, employee or employees, or agent or agents, as the Board of
Directors shall by resolution direct. The Board of Directors may, in its
discretion, also provide by resolution for the countersignature or registration
of any or all such orders, instruments or obligations for the payment of money.
Section 3. Proxies. Unless otherwise prescribed by resolution adopted by
the Board of Directors, the Chairman of the Board of Directors, the President or
any Executive Vice President, Senior Vice President or Vice President may from
time to time appoint an attorney or attorneys or agent or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as the holder of stock or other
securities in any other corporation, any of whose stock or other securities may
be held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporation, or to consent in writing, in the name of
the Corporation as such holder, to any action by such other corporation, and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal or otherwise,
all such written proxies or other instruments as he or she may deem necessary or
proper in the premises.
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ARTICLE IX
Fiscal Year
The fiscal year of the Company shall begin the first day of July in each
year.
ARTICLE X
Miscellaneous
Section 1. Notices and Waivers Thereof. Whenever any notice whatever is
required by these By-laws, the Charter or any of the laws of the State of
Delaware to be given to any stockholder, director or officer, such notice,
except as otherwise provided by the laws of the State of Delaware, may be given
personally or by telephone or be given by facsimile transmission or other form
of electronic communication, addressed to such stockholder at such person's
address as it appears on the stock transfer books of the Corporation, or to such
director or officer at his or her Corporation location, if any, or at such
address as appears on the books of the Corporation, or the notice may be given
in writing by depositing the same in a post office, or in a regularly maintained
letter box, or by sending it via courier in a postpaid, sealed wrapper addressed
to such stockholder at such person's address as it appears on the stock transfer
books of the Corporation, or to such director or officer at his or her
Corporation location, if any, or such address as appears on the books of the
Corporation.
Any notice given by facsimile transmission or other form of electronic
communication shall be deemed to have been given when it shall have been
transmitted. Any notice given by mail or courier shall be deemed to have been
given when it shall have been mailed or delivered to the courier.
A waiver of any such notice in writing, including by facsimile
transmission, signed or dispatched by the person entitled to such notice or by
his or her duly authorized attorney, whether before or after the time stated
therein, shall be deemed equivalent to the notice required to be given, and the
presence at any meeting of any person entitled to notice thereof shall be deemed
a waiver of such notice as to such person.
Section 2. Audits. The accounts, books and records of the Corporation shall
be audited upon the conclusion of each fiscal year by an independent certified
public accountant selected by the Board of Directors, and it shall be the duty
of the Board of Directors to cause such audit to be done annually.
ARTICLE XI
Amendments
These By-laws may be altered, amended or repealed, and new By-laws may be
adopted (a) at any annual or special meeting of stockholders by the affirmative
vote of the holders of a majority of the voting power of the stock issued and
outstanding and entitled to vote thereat, provided, however, that any proposed
alteration, amendment or repeal of, or the adoption of any
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By-law inconsistent with, Sections 3, 5 or 10 of Article II or Sections 1 or 5
of Article III of the By-laws by the stockholders shall require the affirmative
vote of the holders of at least 80% of the voting power of all Voting Stock then
outstanding, voting together as a single class, and provided, further, however,
that, in the case of any such stockholder action at a special meeting of
stockholders, notice of the proposed alteration, amendment, repeal or adoption
of the new By-law or By-laws must be contained in the notice of such special
meeting, or (b) by the affirmative vote of a majority of the Whole Board.