EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS OF
FIDELITY NATIONAL TITLE GROUP, INC.
AS ADOPTED ON SEPTEMBER 26, 2005
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office of
Fidelity National Title Group, Inc. (the "Corporation") shall be in the City of
Wilmington, County of New Castle, State of Delaware and the name and address of
its registered agent is "The Corporation Trust Company," 1209 Orange Street,
Wilmington, Delaware, 19801.
Section 1.2. Other Offices. The Corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors of the Corporation (the "Board of Directors") may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meetings. Meetings of the stockholders
for the election of directors or for any other purpose shall be held at such
time and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2.2. Annual Meetings. (a) The annual meetings of
stockholders (the "Annual Meeting") shall be held on such date and at such time
as shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting, at which meetings the stockholders, subject to the
provisions of the Amended and Restated Certificate of Incorporation of the
Corporation (the "Certificate of Incorporation"), shall elect by a plurality
vote a Board of Directors, and transact such other business as may properly be
brought before the 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 days nor more than sixty days before
the date of the meeting.
(b) No business may be transacted at an Annual Meeting, other
than business that is either (i) 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), (ii) otherwise properly brought before
the Annual Meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (iii) otherwise properly brought before the
Annual Meeting by any stockholder of the Corporation (A) who is a stockholder of
record on the date of
the giving of the notice provided for in this Section 2.2 and on the record date
for the determination of stockholders entitled to vote at such Annual Meeting
and (B) who complies with the notice procedures set forth in this Section 2.2.
(c) In addition to any other applicable requirements, 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 one-hundred and twenty days prior to
the anniversary date of the date of the proxy statement for the immediately
preceding Annual Meeting; provided, however, that in the event that the Annual
Meeting is called for a date that is not within thirty days before or after the
anniversary date of the immediately preceding Annual Meeting, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth day following the day on which public disclosure of the
date of the Annual Meeting was first made. To be in 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 Meeting (i) a brief description
of the business desired to be brought before the Annual Meeting and the reasons
for conducting such business at the Annual Meeting, (ii) the name and record
address of such stockholder, (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, (iv) a description of all arrangements or understandings
between such stockholder and any other person or persons (including their names)
in connection with the proposal of such business by such stockholder and any
material interest of such stockholder 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.
(d) No business shall be conducted at the Annual Meeting
except business brought before the Annual Meeting in accordance with the
procedures set forth in this Section 2.2, provided, however, that, once business
has been properly brought before the Annual Meeting in accordance with such
procedures, nothing in this Section 2.2 shall be deemed to preclude discussion
by any stockholder of any such business. If the Chairman of an Annual Meeting
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 discussed or transacted.
Section 2.3. Special Meetings. Unless otherwise prescribed by
law or by the Certificate of Incorporation, Special Meetings of Stockholders
("Special Meetings"), for any purpose or purposes, may be called by the majority
vote of the Board of Directors or by the Chief Executive Officer. Special
Meetings may not be called by any other person or persons. 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
days nor more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting.
Section 2.4. Quorum. Except as otherwise required by law,
these Amended and Restated Bylaws (these "Bylaws") or by the Certificate of
Incorporation, holders of a majority of
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the capital stock issued 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. 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 noticed. 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 entitled to vote at
the meeting.
Section 2.5. Voting. Unless otherwise required by law, the
Certificate of Incorporation or these Bylaws, any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat. Such votes may
be cast in person or by proxy but no proxy shall be voted on or after three
years from its date, unless such proxy provides for a longer period. The Board
of Directors, in its discretion, or the officer of the Corporation presiding at
a meeting of stockholders, in his discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
Section 2.6. No Consent of Stockholders in Lieu of Meeting.
Any action required or permitted to be taken at any annual or special meeting of
stockholders may be taken only upon the vote of the stockholders at an annual or
special meeting duly noticed and called, as provided in these Bylaws, and may
not be taken by a written consent of the stockholders pursuant to the General
Corporation Law of the State of Delaware (the "DGCL").
Section 2.7. List of Stockholders Entitled to Vote. The
officer of the Corporation 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, either 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
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
Section 2.8. Stock Ledger. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by Section 2.7 hereof or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
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ARTICLE III
DIRECTORS
Section 3.1. Number and Election of Directors. (a) Subject to
the rights, if any, of holders of preferred stock of the Corporation to elect
directors of the Corporation, the Board of Directors shall consist of not less
than one nor more than fourteen members with the exact number of directors to be
determined from time to time exclusively by resolution duly adopted by the Board
of Directors. Directors shall be elected by a plurality of the votes cast at the
Annual Meeting, and, unless otherwise provided by the Certificate of
Incorporation, each director so elected shall hold office until the Annual
Meeting for the year in which his term expires and until his successor is duly
elected and qualified, or until his earlier death, resignation, retirement,
disqualification or removal. Any director may resign at any time effective upon
giving written notice to the Corporation, unless the notice specifies a later
time for the effectiveness of such resignation. Directors need not be
stockholders.
(b) Only persons who are nominated in accordance with the
following procedures 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 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 or at any Special Meeting called by a majority
vote of the Board of Directors or by the Chief Executive Officer for the purpose
of electing directors (i) by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (ii) by any stockholder of the
Corporation (A) who is a stockholder of record on the date of the giving of the
notice provided for in this Section 3.1 and on the record date for the
determination of stockholders entitled to vote at such Annual or Special Meeting
and (B) who complies with the notice procedures set forth in this Section 3.1.
(c) 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 (i) in the
case of an Annual Meeting, not less than one-hundred and twenty days prior to
the anniversary date of the date of the proxy statement for the immediately
preceding Annual Meeting; provided, however, that in the event that the Annual
Meeting is called for a date that is not within thirty days before or after the
anniversary date of the immediately preceding Annual Meeting, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth day following the day on which public disclosure of the
date of the Annual Meeting was first made; and (ii) in the case of a Special
Meeting called for the purpose of electing directors, not later than the close
of business on the tenth day following the day on which public disclosure of the
date of the Special Meeting was first made.
(d) To be in proper written form, a stockholder's notice to
the Secretary must set forth (i) as to each person whom the stockholder proposes
to nominate for election as a director (A) the name, age, business address and
residence address of the person, (B) the principal occupation or employment of
the person, (C) the class or series and number of shares of capital
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stock of the Corporation which are owned beneficially or of record by the person
and (D) any other information relating to the person that would be required to
be disclosed in a proxy statement or other filing 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 (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (ii) as to the
stockholder giving the notice (A) the name and record address of such
stockholder, (B) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(C) a description of all arrangements or understandings between such stockholder
and each proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made by such stockholder,
(D) a representation that such stockholder intends to appear in person or by
proxy at the Annual Meeting to nominate the persons named in its notice and (E)
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
proposed nominee to being named as a nominee and to serve as a director if
elected.
(e) No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the procedures set forth in
this Section 3.1. 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.
Section 3.2. Vacancies. Any vacancy on the Board of Directors,
however created, may be filled only by a majority of the directors then in
office, though less than a quorum, or by a sole remaining director. Any director
elected to fill a newly created directorship resulting from an increase in any
class of directors shall hold office for a term that shall coincide with the
remaining term of the other directors of that class. Any director elected to
fill a vacancy not resulting from an increase in the number of directors shall
have the same term as the remaining term of his predecessor.
Section 3.3. Duties and Powers. The business of the
Corporation shall be managed by or under the direction of the 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 3.4. Meetings. The Board of Directors may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by
the Chief Executive Officer, the Chairman, if there is one, the President, or
any directors. Notice thereof stating the place, date and hour of the meeting
shall be given to each director either by mail not less than forty-eight hours
before the date of the meeting, by telephone or facsimile on twenty-four hours'
notice, or on such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate in the circumstances.
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Section 3.5. Quorum. Except as may be otherwise specifically
provided by law, the Certificate of Incorporation or these Bylaws, at all
meetings of the Board of Directors, a majority of the entire Board 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. 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 3.6. Actions of Board. Unless otherwise provided 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 the 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.
Section 3.7. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Certificate of Incorporation or these Bylaws, members
of the Board of Directors of the Corporation, 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 3.7 shall
constitute presence in person at such meeting.
Section 3.8. Committees. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
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 absent or disqualified member. Any committee, to the extent allowed by law
and provided in the resolution establishing such 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. Each committee shall
keep regular minutes and report to the Board of Directors when required.
Section 3.9. Audit Committee. The Board of Directors, by
resolution adopted by a majority of the whole Board of Directors, may designate
three or more directors to constitute an Audit Committee, to serve as such until
the next annual meeting of the Board of Directors or until their respective
successors are designated. The audit committee will carry out its
responsibilities as set forth in an audit committee charter to be adopted by the
Board of Directors.
Section 3.10. Compensation. At the discretion of the Board of
Directors, the directors may be paid their expenses, if any, of attendance at
each meeting of the Board of
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Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. At the discretion of the Board of Directors,
members of special or standing committees may be allowed like compensation for
attending committee meetings.
Section 3.11. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if: (a) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (b) the material facts as to
his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (c) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
Section 3.12. Entire Board of Directors. As used in these
Bylaws generally, the term "entire Board of Directors" means the total number of
directors which the Corporation would have if there were no vacancies.
ARTICLE IV
OFFICERS
Section 4.1. General. The officers of the Corporation shall be
chosen by the Board of Directors and shall include a Chief Executive Officer, a
President and a Secretary. The Board of Directors, in its discretion, may also
appoint a Chairman of the Board of Directors (who must be a director), Chief
Financial Officer, Assistant Chief Financial Officers, Controller, Treasurer,
Assistant Treasurers and one or more Vice Presidents, Assistant Secretaries, and
other officers, who shall have such authority and perform such duties as may be
prescribed in such appointment. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or
these Bylaws. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors,
need such officers be directors of the Corporation.
Section 4.2. Election. The Board of Directors at its first
meeting held after each Annual Meeting of Stockholders shall elect the officers
of the Corporation who shall hold their
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offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen
and qualified, or until their earlier resignation or removal. Any officer
elected by the Board of Directors may be removed at any time by the affirmative
vote of a majority of the Board of Directors. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of Directors. The
salaries of all officers of the Corporation shall be fixed by the Board of
Directors.
Section 4.3. Voting Securities Owned by the Corporation.
Powers of attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed in
the name of and on behalf of the Corporation by the Chief Executive Officer, the
President or any Vice President and any such officer may, in the name of and on
behalf of the Corporation, take all such action as any such officer may deem
advisable to vote in person or by proxy at any meeting of security holders of
any corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and power incident to
the ownership of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 4.4. Duties of Officers. The duties of the officers of
the Corporation shall be as follows:
(a) Chief Executive Officer. The Chief Executive Officer
shall, subject to the control of the Board of Directors, have general executive
charge, management and control of the properties, business and operations of the
Corporation with all such powers as may be reasonably incident to such
responsibilities; and the Chief Executive Officer may agree upon and execute all
leases, contracts, evidences of indebtedness and other obligations in the name
of the Corporation and may sign all certificates for shares of capital stock of
the Corporation. In the absence or disability of the Chairman of the Board of
Directors, or if there is none, the Chief Executive Officer shall preside at all
meetings of the stockholders and the Board of Directors. The Chief Executive
Officer shall also perform such other duties and may exercise such other powers
as from time to time may be assigned to him by these Bylaws or by the Board of
Directors.
(b) Chairman of the Board of Directors. The Chairman of the
Board of Directors, if there is one, shall preside at all meetings of the
stockholders and of the Board of Directors. Except where by law the signature of
the Chief Executive Officer or the President is required, the Chairman of the
Board of Directors shall possess the same power as the Chief Executive Officer
or the President to sign all contracts, certificates and other instruments of
the Corporation which may be authorized by the Board of Directors. During the
absence or disability of the Chief Executive Officer or the President, the
Chairman of the Board of Directors shall exercise all the powers and discharge
all the duties of the Chief Executive Officer or the President. The Chairman of
the Board of Directors shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws or
by the Board of Directors.
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(c) President. The President shall, subject to the control of
the Board of Directors, the Chief Executive Officer, and, if there is one, the
Chairman of the Board of Directors, have general supervision of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute all bonds, mortgages,
contracts and other instruments of the Corporation requiring a seal, under the
seal of the Corporation, except where required or permitted by law to be
otherwise signed and executed and except that the other officers of the
Corporation may sign and execute documents when so authorized by these Bylaws,
the Board of Directors, the Chief Executive Officer, the Chairman of the Board
of Directors or the President. In the absence or disability of the Chief
Executive Officer and the Chairman of the Board of Directors, or if there is
none, the President shall preside at all meetings of the stockholders and the
Board of Directors. The President shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these
Bylaws or by the Board of Directors.
(d) Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors, the
Chief Executive Officer or the President, under whose supervision he shall be.
If the Secretary shall be unable or shall refuse to cause to be given notice of
all meetings of the stockholders and special meetings of the Board of Directors,
and if there is no Assistant Secretary, then either the Board of Directors, the
Chief Executive Officer or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there is one, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The Secretary shall see that all books,
reports, statements, certificates and other documents and records required by
law to be kept or filed are properly kept or filed, as the case may be.
(e) Assistant Secretaries. Except as may be otherwise provided
in these Bylaws, Assistant Secretaries, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chief Executive Officer, the President, any Vice
President, if there is one, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act, shall perform 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.
(f) Chief Financial Officer. The Chief Financial Officer shall
have the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Chief Financial Officer shall disburse the funds
of the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Chief Executive
Officer, the Chairman of the Board, the
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President and the Board of Directors, at its regular meetings or when the Board
of Directors so requires, an account of all transactions as Chief Financial
Officer and of the financial condition of the Corporation. The Chief Financial
Officer shall perform such other duties as may from time to time be prescribed
by the Board of Directors, the Chief Executive Officer, the Chairman of the
Board or the President.
(g) Assistant Chief Financial Officer. The Assistant Chief
Financial Officer, or if there is more than one, the Assistant Chief Financial
Officers, in the order determined by the Board of Directors (or if there is no
such determination, then in the order of their election), shall, in the absence
of the Chief Financial Officer or in the event of the Chief Financial Officer's
inability or refusal to act, perform the duties and exercise the powers of the
Chief Financial Officer and shall perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors, the
Chief Executive Officer, the Chairman of the Board, the President or the Chief
Financial Officer.
(h) Controller. The Board of Directors may elect a Controller
who shall be responsible for all accounting and auditing functions of the
Corporation and who shall perform such other duties as may from time to time be
required of him by the Board of Directors.
(i) Treasurer. The Treasurer, if there is one, shall have the
custody of the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer, the President
and the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his transactions as Treasurer and of
the financial condition of the Corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
(j) Assistant Treasurers. Assistant Treasurers, if there are
any, shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chief Executive Officer, the
President, any Vice President, or the Treasurer, if there is one, and in the
absence of the Treasurer or in the event of his disability or refusal to act,
shall perform 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. If
required by the Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
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(k) Vice Presidents. At the request of the President or in his
absence or in the event of his inability or refusal to act (and if there is no
Chief Executive Officer or Chairman of the Board of Directors), the Vice
President or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the President,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. Each Vice President shall perform such other
duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chief Executive Officer, no Chairman of the Board
of Directors and no Vice President, the Board of Directors shall designate the
officer of the Corporation who, in the absence of the President or in the event
of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President.
(l) Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
CAPITAL STOCK
Section 5.1. Form of Certificates. Every holder of stock in
the Corporation shall be entitled to have a certificate or certificates duly
numbered, certifying the number and class of shares in the Corporation owned by
him, in such form as may be prescribed by the Board of Directors. Each such
certificate shall be signed in the name of the Corporation by the Chief
Executive Officer, the Chairman of the Board, the President or a Vice President,
and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer.
Section 5.2. Signatures. Where a certificate is countersigned
by (a) a transfer agent other than the Corporation or its employee, or (b) a
registrar other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In 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 5.3. Lost Certificates. The Board of Directors may
direct a new certificate to be issued in place of any certificate theretofore
issued by the Corporation alleged to have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to advertise the same in
such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any
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claim that may be made against the Corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
Section 5.4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these Bylaws. Transfers of
stock shall be made on the books of the Corporation only by the person named in
the certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
Section 5.5. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled 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 days 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.
Section 5.6. Beneficial Owners. The Corporation shall be
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, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by law.
ARTICLE VI
NOTICES
Section 6.1. Notices. Whenever written notice is required by
law, the Certificate of Incorporation or these Bylaws to be given to any
director, member of a committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee 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. Written notice may also be given
personally or transmitted via facsimile.
Section 6.2. Waivers of Notice. Whenever any notice is
required by law, the Certificate of Incorporation or these Bylaws to be given to
any director, member of a committee or stockholder, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
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ARTICLE VII
GENERAL PROVISIONS
Section 7.1. Dividends. Dividends upon the capital stock of
the Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, and may be paid in cash, in property, or in shares of the capital
stock. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such reserve.
Section 7.2. Disbursements. All checks or demands for money
and notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 7.3. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 7.4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization and
the words "Corporate Seal, Delaware." The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Power to Indemnify in Actions, Suits or
Proceedings Other Than Those by or in the Right of the Corporation. Subject to
Section 8.3 hereof, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation,
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and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 8.2. Power to Indemnify in Actions, Suits or
Proceedings by or in the Right of the Corporation. Subject to Section 8.3
hereof, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 8.3. Authorization of Indemnification. Any
indemnification under this Article VIII (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 8.1 or Section 8.2 hereof, as the case may be. Such determination shall
be made (a) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or (b) if there are
no such directors, or if such directors so direct, by independent legal counsel
in a written opinion, or (c) by the stockholders. To the extent, however, that a
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case.
Section 8.4. Good Faith Defined. For purposes of any
determination under Section 8.1 or 8.2 hereof, a person shall be deemed to have
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to him by
the officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The term "another enterprise" as used in this Section 8.4
shall mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or agent. The
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provisions of this Section 8.4 shall not be deemed to be exclusive or to limit
in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 8.1 or 8.2 hereof, as the
case may be.
Section 8.5. Indemnification by a Court. Notwithstanding any
contrary determination made in any specific case under Section 8.3 hereof, and
notwithstanding the absence of any determination made thereunder, any director
or officer may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under Sections
8.l and 8.2 hereof. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of
conduct set forth in Section 8.1 or 8.2 hereof. Neither a contrary determination
in the specific case under Section 8.3 hereof nor the absence of any
determination thereunder shall be a defense to such application or create a
presumption that the director or officer seeking indemnification has not met any
applicable standard of conduct. Notice of any application for indemnification
pursuant to this Section 8.5 shall be given to the Corporation promptly upon the
filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 8.6. Expenses Payable in Advance. Expenses incurred by
a director or officer in defending or investigating a threatened or pending
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 this Article VIII.
Section 8.7. Nonexclusivity of Indemnification and Advancement
of Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any other
rights to which any person seeking indemnification or advancement of expenses
may be entitled under any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, it
being the policy of the Corporation that indemnification of the persons
specified in Sections 8.1 and 8.2 hereof shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 8.1
or 8.2 but whom the Corporation has the power or obligation to indemnify under
the provisions of the DGCL or otherwise.
Section 8.8. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director or officer
of the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article VIII.
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Section 8.9. Certain Definitions. For purposes of this Article
VIII, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, shall stand in
the same position under the provisions of this Article VIII with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued. For purposes of
this Article VIII, references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and references to "serving
at the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article VIII.
Section 8.10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 8.11. Limitation on Indemnification. Notwithstanding
anything contained in this Article VIII to the contrary, except for proceedings
to enforce rights to indemnification (which shall be governed by Section 8.5
hereof), the Corporation shall not be obligated to indemnify any director or
officer in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 8.12. Indemnification of Employees and Agents. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
These Bylaws may be altered, amended or repealed, in whole or
in part, or new Bylaws may be adopted by the stockholders or by the Board of
Directors, provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors as the case may be. All such amendments must
be approved by either the holders of two-thirds of the votes entitled to be
cast,
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voting as a single class, by holders of outstanding capital stock which by its
terms may vote on all matters submitted to stockholders of the Corporation
generally or by a majority of the Board of Directors then in office; provided,
however, that Section 2.2 (except for Section 2.2(a)), Section 2.3, Section 3.1
(except for Section 3.1(a)) and this Article IX may be altered, amended or
repealed only with approval of a majority of the Board of Directors then in
office and approval of holders of two-thirds of the votes entitled to be cast,
voting as a single class, by holders of outstanding capital stock which by its
terms may vote on all matters submitted to stockholders of the Corporation
generally.
ARTICLE X
CONFLICTS
If there is a conflict between the provisions of these Bylaws
and the provisions of the Certificate of Incorporation or the mandatory
provisions of the DGCL, such provision or provisions of the Certificate of
Incorporation and the DGCL, as the case may be, will be controlling.
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