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EXHIBIT 3.2
FORM OF
BYLAWS
ARTICLE I
Offices
SECTION 1.1 Registered Office. The registered office of DiTech Funding
Corporation (the "Corporation") shall be at [Corporation Service Company, 1013
Centre Road, City of Wilmington, County of New Castle], State of Delaware, and
the name of the registered agent in charge thereof shall be the [Corporation
Service Company].
SECTION 1.2 Principal Office. The principal office for the transaction of the
business of the Corporation shall be at such place as the Board of Directors of
the Corporation (the "Board") may determine. The Board is hereby granted full
power and authority to change said principal office from one location to
another.
SECTION 1.3 Other Offices. The Corporation may also have an office or offices at
such other place or places, either within or without the State of Delaware, as
the Board may from time to time determine or as the business of the Corporation
may require.
ARTICLE II
Meetings of Stockholders
SECTION 2.1 Place of Meetings. All annual meetings of stockholders and all other
meetings of stockholders shall be held either at the principal office of the
Corporation or at any other place within or without the State of Delaware that
may be designated by the Board pursuant to authority hereinafter granted to the
Board.
SECTION 2.2 Annual Meetings. Annual meetings of stockholders of the Corporation
for the purpose of electing directors and for the transaction of such other
business as may properly come before such meetings may be held at such time and
place and on such date as the Board shall determine by resolution.
SECTION 2.3 Special Meetings. A special meeting of the stockholders for the
transaction of any proper business may be called at any time by the Board or the
Chairman or upon the written demand of the holders of not less than 30% of the
votes entitled to be cast at a special meeting.
SECTION 2.4 Notice of Meetings. Except as otherwise required by law, notice of
each meeting of stockholders, whether annual or special, shall be given not less
than 10 days nor more than 60 days before the date of the meeting to each
stockholder of record entitled to vote at such meeting by delivering a
typewritten or printed notice thereof to such stockholder personally, or by
depositing such notice in the United States mail, in a postage prepaid envelope,
directed to such stockholder at such stockholder's post office address furnished
by such stockholder to the Secretary of the Corporation for such purpose, or, if
such stockholder shall not have furnished an address to the Secretary for such
purpose, then at such stockholder's post office address last known to the
Secretary, or by transmitting a notice thereof to such stockholder at such
address by telegraph, cable, wireless or facsimile. Except as otherwise
expressly required by law, no publication of any notice of a meeting of
stockholders shall be required. Every notice of a meeting of stockholders shall
state the place, date and hour of the meeting and, in the case of a special
meeting, shall also state the purpose for which the meeting is called. Notice of
any meeting of stockholders shall not be required to be given to any stockholder
to whom notice may be omitted pursuant to applicable Delaware law or who shall
have waived such notice, and such notice shall be deemed waived by any
stockholder who shall attend such meeting in person or by proxy, except a
stockholder who shall attend such meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Except as otherwise expressly
required by law, notice of any adjourned meeting of stockholders need not be
given if the time and place thereof are announced at the meeting at which the
adjournment is taken.
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SECTION 2.5 Quorum. Except as otherwise required by law, the holders of record
of a majority in voting interest of the shares of stock of the Corporation
entitled to be voted thereat, present in person or by proxy, shall constitute a
quorum for the transaction of business at any meeting of stockholders of the
Corporation or any adjournment thereof. Subject to the requirement of a larger
percentage vote, if any, contained in the Certificate of Incorporation, these
Bylaws or by statute, the stockholders present at a duly called or held meeting
at which a quorum is present may continue to do business until adjournment,
notwithstanding any withdrawal of stockholders that may leave less than a quorum
remaining, if any action taken (other than adjournment) is approved by the vote
of at least a majority in voting interest of the shares required to constitute a
quorum. In the absence of a quorum at any meeting or any adjournment thereof, a
majority in voting interest of the stockholders present in person or by proxy
and entitled to vote thereat or, in the absence therefrom of all the
stockholders, any officer entitled to preside at, or to act as secretary of,
such meeting may adjourn such meeting from time to time. At any such adjourned
meeting at which a quorum is present, any business may be transacted that might
have been transacted at the meeting as originally called.
SECTION 2.6 Voting.
(A) Each stockholder shall, at each meeting of stockholders, be entitled
to vote in person or by proxy each share of the stock of the Corporation
that has voting rights on the matter in question and that shall have
been held by such stockholder and registered in such stockholder's name
on the books of the Corporation:
(i) on the date fixed pursuant to Section 6.5 of these Bylaws as
the record date for the determination of stockholders entitled
to notice of and to vote at such meeting; or
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(ii) if no such record date shall have been so fixed, then (a)
at the close of business on the business day next preceding the
day upon which notice of the meeting shall be given or (b) if
notice of the meeting shall be waived, at the close of business
on the business day next preceding the day upon which the
meeting shall be held.
(B) Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the
election of directors in such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes. Persons holding stock of the Corporation in
a fiduciary capacity shall be entitled to vote such stock. Persons whose
stock is pledged shall be entitled to vote, unless in the transfer by
the pledgor on the books of the Corporation the pledgor shall have
expressly empowered the pledgee to vote thereon, in which case only the
pledgee, or the pledgee's proxy, may represent such stock and vote
thereon. Stock having voting power standing of record in the names of
two or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by the entirety or otherwise,
or with respect to which two or more persons have the same fiduciary
relationship, shall be voted in accordance with the provisions of the
Delaware General Corporation Law, as the same exists or may hereafter be
amended (the "DGCL").
(C) Subject to the provisions of the Corporation's Certificate of
Incorporation, any such voting rights may be exercised by the
stockholder entitled thereto in person or by such stockholder's proxy
appointed by an instrument in writing, subscribed by such stockholder or
by such stockholder's attorney thereunto authorized and delivered to the
secretary of the meeting. The attendance at any meeting of a stockholder
who may theretofore have given a proxy shall not have the effect of
revoking the same unless such stockholder shall in writing so notify the
secretary of the meeting prior to the voting of the proxy. At any
meeting of stockholders at which a quorum is present, all matters,
except as otherwise provided in the Certificate of Incorporation, in
these Bylaws or by law, shall be decided by the vote of a majority in
voting interest of the stockholders present in person or by proxy and
entitled to vote thereat and thereon. The vote at any meeting of
stockholders on any question need not be by ballot, unless so directed
by the Chairman of the meeting. On a vote by ballot, each ballot shall
be signed by the stockholder voting, or by such stockholder's proxy, if
there be such proxy, and it shall state the number of shares voted.
SECTION 2.7 Judges. Prior to each meeting of stockholders, the Chairman of such
meeting shall appoint a judge or judges to act with respect to any vote. Each
judge so appointed shall first subscribe an oath faithfully to execute the
duties of a judge at such meeting with strict impartiality and according to the
best of such judge's ability. Such judges shall decide upon the qualification of
the voters and shall certify and report the number of shares represented at the
meeting and entitled to vote on any question, determine the number of votes
entitled to be cast by each share, shall conduct and, when the voting is
completed, accept the votes and ascertain and report the number of shares voted
respectively for and against each question, and determine, and retain for a
reasonable period a record of the disposition of, any challenge made to any
determination made by such judges. Reports of judges shall be in writing and
subscribed and delivered by them to the Secretary of the Corporation. The judges
need not be stockholders of the Corporation, and any officer of the Corporation
may be a judge on any question other than a vote for or against a proposal in
which such officer shall have a material interest. The judges may appoint or
retain other persons or entities to assist the judges in the performance of the
duties of the judges.
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SECTION 2.8 Advance Notice of Stockholder Proposals and Stockholder Nominations.
(A) At any meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (i) by or at the
direction of the Board or (ii) by any stockholder of the Corporation who
complies with the notice procedures set forth in this Section 2.8(A).
For business to be properly brought before any meeting of the
stockholders by a stockholder, the stockholder must have given notice
thereof in writing to the Secretary of the Corporation not less than 90
days in advance of such meeting or, if later, the seventh day following
the first public announcement of the date of such meeting. A
stockholder's notice to the Secretary shall set forth as to each matter
the stockholder proposes to bring before the meeting (1) a brief
description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting, (2) the name
and address, as they appear on the Corporation's books, of the
stockholder proposing such business, (3) the class and number of shares
of the Corporation that are beneficially owned by the stockholder, and
(4) any material interest of the stockholder in such business. In
addition, the stockholder making such proposal shall promptly provide
any other information reasonably requested by the Corporation.
Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at any meeting of the stockholders except in
accordance with the procedures set forth in this Section 2.8. The
Chairman of any such meeting shall direct that any business not properly
brought before the meeting shall not be considered.
(B) Nominations for the election of directors may be made by the Board
or by any stockholder entitled to vote in the election of directors;
provided, however, that a stockholder may nominate a person for election
as a director at a meeting only if written notice of such stockholder's
intent to make such nomination has been given to the Secretary of the
Corporation not later than 90 days in advance of such meeting or, if
later, the seventh day following the first public announcement of the
date of such meeting. Each such notice shall set forth: (i) the name and
address of the stockholder who intends to make the nomination and of the
person or persons to be nominated; (ii) a representation that the
stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at
the meeting and nominate the person or persons specified in the notice;
(iii) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations
are to be made by the stockholder; (iv) such other information regarding
each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
United States Securities and Exchange Commission had the nominee been
nominated, or intended to be nominated, by the Board; and (v) the
consent of each nominee to serve as a director of the Corporation if so
elected. In addition, the stockholder making such nomination shall
promptly provide any other information reasonably requested by the
Corporation. 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 2.8(B). The Chairman of any meeting of
stockholders shall direct that any nomination not made in accordance
with these procedures be disregarded.
SECTION 2.9 Action Without Meeting. Any action required to be taken at any
annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of such stockholders, may,
if such action has been earlier approved by the Board, be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
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ARTICLE III
Board of Directors
SECTION 3.1 General Powers. Subject to any requirements in the Certificate of
Incorporation, these Bylaws, or of the DGCL as to action which must be
authorized or approved by the stockholders, any and all corporate powers shall
be exercised by or under the authority of, and the business and affairs of the
Corporation shall be under the direction of, the Board to the fullest extent
permitted by law. Without limiting the generality of the foregoing, it is hereby
expressly declared that the Board shall have the following powers, to wit:
(A) to select and remove all the officers, agents and employees of the
Corporation, prescribe such powers and duties for them as may not be
inconsistent with law, the Certificate of Incorporation or these Bylaws,
fix their compensation, and require from them security for faithful
service;
(B) to conduct, manage and control the affairs and business of the
Corporation, and to make such rules and regulations therefor not
inconsistent with law, the Certificate of Incorporation or these Bylaws,
as it may deem best;
(C) to change the location of the registered office of the Corporation
in Section 1.1 hereof; to change the principal office and the principal
office for the transaction of the business of the Corporation from one
location to another as provided in Section 1.2 hereof; to fix and locate
from time to time one or more offices of the Corporation within or
without the State of Delaware as provided in Section 1.3 hereof; to
designate any place within or without the State of Delaware for the
holding of any meeting or meetings of stockholders; and to adopt, make
and use a corporate seal, and to prescribe the forms of certificates of
stock, and to alter the form of such seal and of such certificates from
time to time, and in its judgment as it may deem best, provided such
seal and such certificate shall at all times comply with the provisions
of law;
(D) to authorize the issuance of shares of stock of the Corporation from
time to time, upon such terms and for such considerations as may be
lawful;
(E) to borrow money and incur indebtedness for the purposes of the
Corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust and
securities therefor; and
(F) by resolution adopted by a majority of the whole Board to designate
an executive and other committees of the Board, each consisting of one
or more directors, to serve at the pleasure of the Board, and to
prescribe the manner in which proceedings of such committee or
committees shall be conducted.
SECTION 3.2 Number and Term of Office.
(A) Until this Section 3.2 is amended by a resolution duly adopted by
the Board or by the stockholders of the Corporation, the number of
directors constituting the entire Board shall be not less than _____(_)
members nor more than ____ (__) members and shall initially consist of
five (5) members. Directors need not be stockholders. Each of the
directors of the Corporation shall hold office until his successor shall
have been duly elected and shall qualify or until he shall resign or
shall have been removed in the manner hereinafter provided.
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(B) The Board shall be divided into three classes: Class I, Class II and
Class III. Such classes shall be as nearly equal in number of directors
as possible with the term of office of one class expiring each year. At
the annual meeting of stockholders in 1998, directors of Class I shall
be elected to hold office for a term ending at the next succeeding
annual meeting of stockholders, directors of Class II shall be elected
to hold office for a term ending at the second succeeding annual meeting
of stockholders and directors of Class III shall be elected to hold
office for a term ending at the third succeeding annual meeting of
stockholders. Subject to the following, at each annual meeting of
stockholders, the successors to the class of directors whose term shall
then expire shall be elected to hold office for a term expiring at the
third succeeding annual meeting of stockholders.
(C) During any period when the holders of preferred stock or any one or
more series thereof, voting as a class, shall be entitled to elect a
specified number of directors by reason of dividend arrearages or other
contingencies giving them the right to do so, then and during such time
as such right continues (1) the then otherwise authorized number of
directors shall be increased by such specified number of directors, and
the holders of the preferred stock or such series thereof, voting as a
class, shall be entitled to elect the additional directors as provided
for pursuant to the provisions of such preferred stock or series; (2)
the additional directors shall be members of those respective classes of
directors in which vacancies are created as a result of such increase in
the authorized number of directors; and (3) each such additional
director shall serve until the annual meeting at which the term of
office of his class shall expire and until his successor shall be
elected and shall qualify, or until his right to hold such office
terminates pursuant to the provisions of such preferred stock or series,
whichever occurs earlier. Whenever the holders of such preferred stock
or series thereof are divested of such rights to elect a specified
number of directors, voting as a class, pursuant to the provisions of
such preferred stock or series, the terms of office of all directors
elected by the holders of such preferred stock or series, voting as a
class pursuant to such provisions, or elected to fill any vacancies
resulting from the death, resignation or removal of directors so elected
by the holders of such preferred stock or series, shall forthwith
terminate and the authorized number of directors shall be reduced
accordingly.
SECTION 3.3 Election of Directors. The directors shall be elected by the
stockholders of the Corporation, and at each election, the persons receiving the
greater number of votes, up to the number of directors then to be elected, shall
be the persons then elected. The election of directors is subject to any
provision contained in the Certificate of Incorporation relating thereto,
including any provision regarding the rights of holders of preferred stock to
elect directors.
SECTION 3.4 Resignations. Any director of the Corporation may resign at any time
by giving written notice to the Board or to the Secretary of the Corporation.
Any such resignation shall take effect at the time specified therein, or, if the
time is not specified, it shall take effect immediately upon receipt; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
SECTION 3.5 Vacancies. Except as otherwise provided in the Certificate of
Incorporation, any vacancy in the Board, whether because of death, resignation,
disqualification, an increase in the number of directors, removal, or any other
cause, may be filled by vote of the majority of the remaining directors,
although less than a quorum. Increases in the number of directors shall be
filled in accordance with the rule that each class of directors shall be as
nearly equal in number of directors as possible. Notwithstanding such rule, in
the event of any change in the authorized number of directors each director then
continuing to serve as such will nevertheless continue as a director of the
class of which he is a member, until the expiration of his current term or his
earlier death, resignation or removal. If any newly created directorship or
vacancy on the Board, consistent with the rule that the three classes shall be
as nearly equal in number of directors as possible, may be allocated to one or
two or more classes, the Board shall allocate it to that of the available class
whose term of office is due to expire at the earliest date following such
allocation. When the Board fills a vacancy, the director chosen to fill that
vacancy shall be of the same class as the director he succeeds and shall hold
office until such director's successor shall have been elected and shall qualify
or until such director shall resign or shall have been removed. No reduction of
the authorized number of directors shall have the effect of removing any
director prior to the expiration of such director's term of office.
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SECTION 3.6 Place of Meeting. The Board or any committee thereof may hold any of
its meetings at such place or places within or without the State of Delaware as
the Board or such committee may from time to time by resolution designate or as
shall be designated by the person or persons calling the meeting or in the
notice or a waiver of notice of any such meeting. Directors may participate in
any regular or special meeting of the Board or any committee thereof by means of
conference telephone or similar communications equipment pursuant to which all
persons participating in the meeting of the Board or such committee can hear
each other, and such participation shall constitute presence in person at such
meeting.
SECTION 3.7 Regular Meetings. Regular meetings of the Board may be held at such
times as the Board shall from time to time by resolution determine. If any day
fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting shall be held at the same hour and place
on the next succeeding business day not a legal holiday. Except as provided by
law, notice of regular meetings need not be given.
SECTION 3.8 Special Meetings. Special meetings of the Board for any purpose or
purposes shall be called at any time by the Chairman of the Board or, if the
Chairman of the Board is absent or unable or refuses to act, by the President,
and may also be called by any two members of the Board. Except as otherwise
provided by law or by these Bylaws, written notice of the time and place of
special meetings shall be delivered personally or by facsimile to each director,
or sent to each director by mail or by other form of written communication,
charges prepaid, addressed to such director at such director's address as it is
shown upon the records of the Corporation, or, if it is not so shown on such
records and is not readily ascertainable, at the place in which the meetings of
the directors are regularly held. In case such notice is mailed or telegraphed,
it shall be deposited in the United States mail or delivered to the telegraph
company in the County in which the principal office for the transaction of the
business of the Corporation is located at least 48 hours prior to the time of
the holding of the meeting. In case such notice is delivered personally or by
facsimile as above provided, it shall be delivered at least 24 hours prior to
the time of the holding of the meeting. Such mailing, telegraphing, delivery or
facsimile transmission as above provided shall be due, legal and personal notice
to such director. Except where otherwise required by law or by these Bylaws,
notice of the purpose of a special meeting need not be given. Notice of any
meeting of the Board shall not be required to be given to any director who is
present at such meeting, except a director who shall attend such meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
SECTION 3.9 Quorum and Manner of Acting. Except as otherwise provided in these
Bylaws, the Certificate of Incorporation or by applicable law, the presence of a
majority of the authorized number of directors shall be required to constitute a
quorum for the transaction of business at any meeting of the Board, and all
matters shall be decided at any such meeting, a quorum being present, by the
affirmative votes of a majority of the directors present. A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, provided any action taken is approved by at least a
majority of the required quorum for such meeting. In the absence of a quorum, a
majority of directors present at any meeting may adjourn the same from time to
time until a quorum shall be present. Notice of any adjourned meeting need not
be given. The directors shall act only as a Board, and the individual directors
shall have no power as such.
SECTION 3.10 Action by Unanimous Written Consent. Any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting if consent in writing is given thereto by all
members of the Board or of such committee, as the case may be, and such consent
is filed with the minutes of proceedings of the Board or of such committee.
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SECTION 3.11 Compensation. Directors, whether or not employees of the
Corporation or any of its subsidiaries, may receive an annual fee for their
services as directors in an amount fixed by resolution of the Board plus other
compensation, including options to acquire capital stock of the Corporation, in
an amount and of a type fixed by resolution of the Board, and, in addition, a
fixed fee, with or without expenses of attendance, may be allowed by resolution
of the Board for attendance at each meeting, including each meeting of a
committee of the Board. Nothing herein contained shall be construed to preclude
any director from serving the Corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation therefor.
SECTION 3.12 Committees. The Board may, by resolution passed by a majority of
the whole Board, designate one or more committees, each committee to consist of
one or more of the directors of the Corporation. Any such committee, to the
extent provided in the resolution of the Board and subject to any restrictions
or limitations on the delegation of power and authority imposed by applicable
law, shall have and may exercise all the powers and authority of the Board in
the management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it.
Any such committee shall keep written minutes of its meetings and report the
same to the Board at the next regular meeting of the Board. Unless the Board or
these Bylaws shall otherwise prescribe the manner of proceedings of any such
committee, meetings of such committee may be regularly scheduled in advance and
may be called at any time by the chairman of the committee or by any two members
thereof; otherwise, the provisions of these Bylaws with respect to notice and
conduct of meetings of the Board shall govern.
SECTION 3.13 Affiliated Transactions. Notwithstanding any other provision of
these Bylaws, each transaction, or, if an individual transaction constitutes a
part of a series of transactions, each series of transactions, proposed to be
entered into between the Corporation, on the one hand, and J. Paul Reddam and
his immediate family (the "Reddam Family"), or any affiliate of the Reddam
Family, on the other hand, must be approved by a majority of the Independent
Directors. Notwithstanding any other provision of these Bylaws, this Section
3.13 may only be amended by the vote of the majority of the Independent
Directors. For the purposes of this Section 3.13, (a) "affiliate" shall mean (i)
any person that, directly or indirectly, controls or is controlled by or is
under common control with such person, (ii) any other person that owns,
beneficially, directly or indirectly, twenty percent (20%) or more of the
outstanding capital shares, shares or equity interests of such person, or (iii)
any officer, director, employee, partner or trustee of such person or any person
controlling, controlled by or under common control with such person (excluding
trustees and persons serving in similar capacities who are not otherwise an
Affiliate of such person); (b) "person" shall mean and include individuals,
corporations, general and limited partnerships, stock companies or associations,
joint ventures, associations, companies, trusts, banks, trust companies, land
trusts, business trusts or other entities and governments and agencies and
political subdivisions thereof; (c) "control" (including the correlative
meanings of the terms "controlled by" and "under common control with"), as used
with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such person, through the ownership of voting securities, partnership interests
or other equity interests; and (d) Independent Director shall mean a Director
who is not an officer or employee of the Corporation or any of its subsidiaries.
ARTICLE IV
Officers
SECTION 4.1 Officers. The officers of the Corporation shall be a Chairman, a
President, one or more Vice Presidents (the number thereof and their respective
titles to be determined by the Board), a Secretary, and such other officers as
may be appointed at the discretion of the Board in accordance with the
provisions of Section 4.3 hereof.
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SECTION 4.2 Election. The officers of the Corporation, except such officers as
may be appointed or elected in accordance with the provisions of Sections 4.3 or
4.5 hereof, shall be chosen annually by the Board at the first meeting thereof
after the annual meeting of stockholders, and each officer shall hold office
until such officer shall resign or shall be removed or otherwise disqualified to
serve, or until such officer's successor shall be elected and qualified.
SECTION 4.3 Other Officers. In addition to the officers chosen annually by the
Board at its first meeting, the Board also may appoint or elect such other
officers as the business of the Corporation may require, each of whom shall have
such authority and perform such duties as are provided in these Bylaws or as the
Board may from time to time specify, and shall hold office until such officer
shall resign or shall be removed or otherwise disqualified to serve, or until
such officer's successor shall be elected and qualified.
SECTION 4.4 Removal and Resignation. Any officer may be removed, either with or
without cause, by resolution of the Board, at any regular or special meeting of
the Board, or except in case of an officer chosen by the Board, by any officer
upon whom such power of removal may be conferred by the Board. Any officer or
assistant may resign at any time by giving written notice of his resignation to
the Board or the Secretary of the Corporation. Any such resignation shall take
effect at the time specified therein, or, if the time is not specified, upon
receipt thereof by the Board or the Secretary, as the case may be; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 4.5 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in these Bylaws for regular appointments to such office.
SECTION 4.6 Chairman of the Board. The Chairman of the Board shall preside at
all meetings of stockholders and at all meetings of the Board. The Chairman
shall exercise and perform such powers and duties with respect to the business
and affairs of the Corporation as may be assigned to the Chairman by the Board
or such other powers and duties as may be prescribed by the Board or these
Bylaws.
SECTION 4.7 President. The President shall exercise and perform such powers and
duties with respect to the administration of the business and affairs of the
Corporation as may from time to time be assigned to the President by the
Chairman of the Board or by the Board, or as may be prescribed by these Bylaws.
In the absence or disability of the Chairman of the Board, or in the event and
during the period of a vacancy in that office, the President shall perform all
the duties of the Chairman of the Board, and when so acting shall have all of
the powers of, and be subject to all the restrictions upon, the Chairman of the
Board and chief executive officer of the Corporation.
SECTION 4.8 Vice President. Each Vice President shall have such powers and
perform such duties with respect to the administration of the business and
affairs of the Corporation as may from time to time be assigned to such Vice
President by the Chairman of the Board or the Board, or the President or as may
be prescribed by these Bylaws. In the absence or disability of the Chairman of
the Board and the President, the Vice Presidents in order of their rank as fixed
by the Board, or if not ranked, the Vice President designated by the Board,
shall perform all of the duties of the Chairman of the Board, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
Chairman of the Board.
SECTION 4.9 Secretary.
(A) The Secretary shall keep, or cause to be kept, at the principal
office of the Corporation or such other place as the Board may order, a
book of minutes of all meetings of directors and stockholders, with the
time and place of holding, whether regular or special, and if special,
how authorized and the notice thereof given, the names of those present
at meetings of directors, the number of shares present or represented at
meetings of stockholders, and the proceedings thereof.
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(B) The Secretary shall keep, or cause to be kept, at the principal
office of the Corporation's transfer agent, a share register, or a
duplicate share register, showing the name of each stockholder, the
number of shares of each class held by such stockholder, the number and
date of certificates issued for such shares, and the number and date of
cancellation of every certificate surrendered for cancellation.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, Etc.
SECTION 5.1 Execution of Contracts. The Board, except as otherwise provided in
these Bylaws, may authorize any officer or officers, or agent or agents, to
enter into any contract or execute any instrument in the name of and on behalf
of the Corporation, and such authority may be general or confined to specific
instances; and unless so authorized by the Board or by these Bylaws, no officer,
agent or employee shall have any power or authority to bind the Corporation by
any contract or engagement or to pledge its credit or to render it liable for
any purpose or in any amount.
SECTION 5.2 Checks, Drafts, Etc. All checks, drafts or other orders for payment
of money, notes or other evidence of indebtedness, issued in the name of or
payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board. Each such officer, assistant, agent or attorney shall
give such bond, if any, as the Board may require.
SECTION 5.3 Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board may select, or as may be
selected by any officer or officers, assistant or assistants, agent or agents,
or attorney or attorneys of the Corporation to whom such power shall have been
delegated by the Board. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, the Chairman of the Board, the
President, any Vice President (or any other officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation who
shall from time to time be determined by the Board) may endorse, assign and
deliver checks, drafts and other orders for the payment of money which are
payable to the order of the Corporation.
SECTION 5.4 General and Special Bank Accounts. The Board may from time to time
authorize the opening and keeping of general and special bank accounts with such
banks, trust companies or other depositories as the Board may select or as may
be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these Bylaws, as it may deem expedient.
ARTICLE VI
Shares and Their Transfer
SECTION 6.1 Certificates for Stock. Every owner of stock of the Corporation
shall be entitled to have a certificate or certificates, to be in such form as
the Board shall prescribe, certifying the number and class or series of shares
of the stock of the Corporation owned by such owner. The certificates
representing shares of such stock shall be numbered in the order in which they
shall be issued and shall be signed in the name of the Corporation by the
Chairman of the Board, the President or any Vice President, and by the
Secretary. Any or all of the signatures on the certificates may be a facsimile.
In case any officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed upon, any such certificate, shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, such certificate may nevertheless be issued by the Corporation with
the same effect as though the person who signed such certificate, or whose
facsimile signature shall have been placed thereupon, were such an officer,
transfer agent or registrar at the date of issue. A record shall be kept of the
respective names of the persons, firms or corporations owning the stock
represented by such certificates, the number and class or series of shares
represented by such certificates, respectively, and the respective dates
thereof, and in case of cancellation, the respective dates of cancellation.
Every certificate surrendered to the Corporation for exchange or transfer shall
be cancelled, and no new certificate or certificates shall be issued in exchange
for any existing certificate until such existing certificate shall have been so
cancelled, except in cases provided for in Section 6.4 hereof.
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SECTION 6.2 Transfers of Stock. Transfers of shares of stock of the Corporation
shall be made only on the books of the Corporation by the registered holder
thereof, or by such holder's attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary, or with a transfer clerk or a
transfer agent appointed as provided in Section 6.3 hereof, and upon surrender
of the certificate or certificates for such shares properly endorsed and the
payment of all taxes thereon. The person in whose name shares of stock stand on
the books of the Corporation shall be deemed the owner thereof for all purposes
as regards the Corporation. Whenever any transfer of shares shall be made for
collateral security, and not absolutely, such fact shall be so expressed in the
entry of transfer if, when the certificate or certificates shall be presented to
the Corporation for transfer, both the transferor and the transferee request the
Corporation to do so.
SECTION 6.3 Regulations. The Board may make such rules and regulations as it may
deem expedient, not inconsistent with these Bylaws, concerning the issue,
transfer and registration of certificates for shares of the stock of the
Corporation. It may appoint, or authorize any officer or officers to appoint,
one or more transfer clerks or one or more transfer agents and one or more
registrars, and may require all certificates for stock to bear the signature or
signatures of any of them.
SECTION 6.4 Lost, Stolen, Destroyed, and Mutilated Certificates. In any case of
loss, theft, destruction, or mutilation of any certificate of stock, another may
be issued in its place upon proof satisfactory to the Board of such loss, theft,
destruction, or mutilation and upon the giving of a bond of indemnity to the
Corporation in such form and in such sum as the Board may direct; provided,
however, that a new certificate may be issued without requiring any bond when,
in the judgment of the Board, it is proper so to do.
SECTION 6.5 Fixing Date for Determination of Stockholders of Record. 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
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any other change,
conversion or exchange of stock or for the purpose of any other lawful action
other than to consent to corporate action in writing without a meeting, the
Board may fix, in advance, a record date, which shall not be more than 60 nor
less than 10 days before the date of such meeting, nor more than 60 days prior
to any such other action. If in any case involving the determination of
stockholders for any purpose other than notice of or voting at a meeting of
stockholders the Board shall not fix such a record date, then the record date
for determining stockholders for such purpose shall be the close of business on
the day on which the Board shall adopt the resolution relating thereto. A
determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of such meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
ARTICLE VII
Indemnification
SECTION 7.1 Indemnification of Directors and Officers. The Corporation shall
indemnify, in the manner and to the fullest extent permitted by the DGCL (but in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than permitted prior
thereto), any person (or the estate of any person) who is or was a party to, or
is threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether or not by or in the right of the
Corporation, and whether civil, criminal, administrative, investigative or
otherwise, by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise. The Corporation may, to the fullest extent
permitted by the DGCL, purchase and maintain insurance on behalf of any such
person against any liability which may be asserted against such person. The
Corporation may create a trust fund, grant a security interest or use other
means (including without limitation a letter of credit) to ensure the payment of
such sums as may become necessary to effect the indemnification as provided
herein. To the fullest extent permitted by the DGCL, the indemnification
provided herein shall include expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement and any such expenses 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 the indemnitee to
repay such amounts if it is ultimately determined that he or she is not entitled
to be indemnified. The indemnification provided herein shall not be deemed to
limit the right of the Corporation to indemnify any other person for any such
expenses to the fullest extent permitted by the DGCL, nor shall it be deemed
exclusive of any other rights to which any person seeking indemnification from
the Corporation may be entitled under any agreement, the Corporation's
Certificate of Incorporation, vote of stockholders or disinterested directors,
or otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office.
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SECTION 7.2 Indemnification of Employees and Agents. The Corporation may, but
only to the extent that the Board may (but shall not be obligated to) authorize
from time to time, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article VII as they apply to the indemnification and
advancement of expenses of directors and officers of the Corporation.
SECTION 7.3 Enforcement of Indemnification. The rights to indemnification and
the advancement of expenses conferred above shall be contract rights. If a claim
under this Article VII is not paid in full by the Corporation within 60 days
after written claim has been received by the Corporation, except in the case of
a claim for an advancement of expenses, in which case the applicable period
shall be 20 days, the indemnitee may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of such claim. If successful in
whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expenses of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
any applicable standard for indemnification set forth in the DGCL. Neither the
failure of the Corporation (including its Board, independent legal counsel or
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the DGCL, nor an actual determination by the Corporation (including its Board,
independent legal counsel or stockholders) that the indemnitee has not met such
applicable standard of conduct, shall either create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article VII or otherwise shall be on the
Corporation.
ARTICLE VIII
Miscellaneous
SECTION 8.1 Seal. The Board shall adopt a corporate seal, which shall be in the
form of a circle and shall bear the name of the Corporation and words showing
that the Corporation was incorporated in the State of Delaware.
SECTION 8.2 Waiver of Notices. Whenever notice is required to be given by these
Bylaws or the Certificate of Incorporation or by law, the person entitled to
said notice may waive such notice in writing, either before or after the time
stated therein, and such waiver shall be deemed equivalent to notice.
SECTION 8.3 Amendments. Except as otherwise provided herein or in the
Certificate of Incorporation, these Bylaws or any of them may be altered,
amended, repealed or rescinded and new Bylaws may be adopted by the Board or by
the stockholders at any annual or special meeting of stockholders, provided that
notice of such proposed alteration, amendment, repeal, recession or adoption is
given in the notice of such meeting.
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SECTION 8.4 Representation of Other Corporations. The Chairman of the Board or
the President or the Secretary or any Vice President of the Corporation is
authorized to vote, represent and exercise on behalf of the Corporation all
rights incident to any and all shares of any other corporation or corporations
standing in the name of the Corporation, other than a corporation of which the
Corporation owns twenty percent (20%) or more of its capital stock, in which
case such officers shall not be so authorized under these Bylaws without the
authorization of the Board. The authority herein granted to said officers to
vote or represent on behalf of the Corporation any and all shares held by the
Corporation in any other corporation or corporations may be exercised either by
such officers in person or by any person authorized so to do by proxy or power
of attorney duly executed by such officers.
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