================================================================================
Amended and Restated
as of November 20, 1996
BYLAWS
OF
CONSOLIDATED FREIGHTWAYS CORPORATION
INCORPORATED UNDER THE LAWS OF DELAWARE
================================================================================
TABLE OF CONTENTS
BYLAWS
OF
CONSOLIDATED FREIGHTWAYS CORPORATION
ARTICLE I:
LOCATION AND OFFICES
SECTION 1:1. Principal Office............................................ 1
SECTION 1:2. Other Offices............................................... 1
ARTICLE II:
STOCKHOLDERS
SECTION 2:1. Annual Meeting.............................................. 1
SECTION 2:2. Business to be Conducted at Annual Meeting.................. 2
SECTION 2:3. Special Meetings............................................ 3
SECTION 2:4. Place of Meetings........................................... 3
SECTION 2:5. Notice of Meetings.......................................... 3
SECTION 2:6. Rules of Conduct............................................ 4
SECTION 2.7. Quorum and Voting........................................... 4
SECTION 2:8. Voting; Proxy............................................... 5
SECTION 2:9. Voting by Fiduciaries, Pledgees and Pledgors................ 6
SECTION 2:10. Nomination of Directors..................................... 6
SECTION 2:11. List of Stockholders........................................ 7
ARTICLE III:
DIRECTORS
SECTION 3:1. General Powers.............................................. 8
SECTION 3:2. Number and Qualifications................................... 8
SECTION 3:3. Election; Resignation....................................... 8
SECTION 3:4. Meetings.................................................... 9
SECTION 3:5. Quorum...................................................... 9
SECTION 3:6. Committees.................................................. 9
SECTION 3:7. Waiver of Notice............................................ 10
SECTION 3:8. Consent..................................................... 10
SECTION 3:9. Notice to Members of the Board.............................. 10
SECTION 3:10. Presiding Officer........................................... 11
SECTION 3:11. Compensation................................................ 11
SECTION 3:12. Interested Directors........................................ 11
ARTICLE IV:
OFFICERS
SECTION 4:1. Appointment................................................. 12
SECTION 4:2. Tenure ................................................... 12
SECTION 4:3. Salaries ................................................... 12
SECTION 4:4. Chairman of the Board....................................... 12
SECTION 4:5. President. ................................................. 13
SECTION 4:6. Vice Presidents. ........................................... 13
SECTION 4:7. Secretary................................................... 14
SECTION 4:8. Treasurer. ................................................. 14
SECTION 4:9. Other Officers.............................................. 15
ARTICLE V:
CAPITAL STOCK AND DIVIDENDS
SECTION 5:1. Certificates for Shares..................................... 15
SECTION 5:2. Transfers................................................... 15
SECTION 5:3. Regulations Governing Issuance and Transfers
of Shares................................................... 16
SECTION 5:4. Transfer Agents and Registrars.............................. 16
SECTION 5:5. Lost or Destroyed Certificates.............................. 16
SECTION 5:6. Fractions of Shares......................................... 16
SECTION 5:7. Determination of Stockholders............................... 17
SECTION 5:8. Record Date................................................. 17
ARTICLE VI:
OTHER SECURITIES OF THE CORPORATION................................... 17
ii
ARTICLE VII:
INDEMNIFICATION
SECTION 7:1. General Indemnification..................................... 18
SECTION 7:2. Insurance, Indemnification Agreements and
Other Matters............................................... 18
SECTION 7:3. Nonexclusivity.............................................. 19
ARTICLE VIII:
MISCELLANEOUS
SECTION 8:1. Voting Shares in Other Corporations......................... 19
SECTION 8:2. Execution of Other Papers and Documents..................... 19
SECTION 8:3. Corporate Seal.............................................. 20
SECTION 8:4. Books and Records........................................... 20
SECTION 8:5. Fiscal Year................................................. 20
SECTION 8:6. Amendments.................................................. 20
iii
AMENDED AND RESTATED
BYLAWS
OF
CONSOLIDATED FREIGHTWAYS CORPORATION
ARTICLE I: LOCATION AND OFFICES
Principal Office.
SECTION 1:1. The principal office of Consolidated Freightways Corpora
tion (the "Corporation") shall be at such place as the Board of Directors
of the Corporation (the "Board") may from time to time determine, but until
a change is effected such principal office shall be at 175 Linfield Drive
in the City of Menlo Park, California.
Other Offices.
SECTION 1:2. The Corporation may also have other offices, in such
places (within or without the State of Delaware) as the Board may from time
to time determine.
ARTICLE II: STOCKHOLDERS
Annual Meeting.
SECTION 2:1. An annual meeting of the stockholders of the Corporation
shall be held at 10:00 o'clock a.m. on the last Monday of April of each
year, beginning in 1997, if not a legal holiday, and if a legal holiday
then on the next succeeding day not a legal holiday or on such other date
as shall be designated from time to time by the Board. The purpose of the
meeting shall be to elect directors and to transact such other business as
properly may be brought before the meeting. If the Corporation shall fail
to hold said meeting for the election of directors on the date aforesaid,
the Board shall cause the election to be held by the stockholders as soon
thereafter as convenient.
Business to be Conducted at Annual Meeting.
SECTION 2:2.1 At an annual meeting of stockholders, only such business
shall be conducted as shall have been brought before the meeting (i)
pursuant to the Corporation's notice of the meeting, (ii) by or at the
direction of the Board (or any duly organized committee thereof), or (iii)
by any stockholder of the Corporation who is a stockholder of record on the
date of 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
meeting and who has complied with the notice procedures set forth in this
Section 2:2.
SECTION 2:2.2 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 in proper written form to
the Secretary which notice is not withdrawn by such stockholder at or prior
to such annual meeting.
SECTION 2:2.3 To be timely, a stockholder's notice to the Secretary
must be delivered or mailed to and received by the Secretary at the
principal executive offices of the Corporation, not less than sixty days
nor more than ninety days prior to the first anniversary date of the
preceding year's annual meeting of stockholders; provided, however, that in
the event that the annual meeting is called for a date that is not within
thirty days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the
close of business on the tenth day following the day on which such notice
of the date of the annual meeting was mailed or such public disclosure of
the date of the annual meeting was made, whichever occurs first.
SECTION 2:2.4 To be in proper written form, such stockholder's notice
must set forth as to each matter the 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 such meeting; (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, and the
name and address of the beneficial owner, if any, on whose behalf the
proposal is made; (iii) the class, series and the number of shares of the
Corporation's stock which are beneficially owned by such stockholder, and
the beneficial owner, if any, on whose behalf the proposal is made; (iv) a
description of all arrangements or understandings between such stockholder
or beneficial owner and any other person or persons (including their names)
in connection with the proposal of such business by such stockholder or
beneficial owner and any material
2
interest of the stockholder, and of the beneficial owner, if any, on whose
behalf the proposal is made, in such business; and (v) a representation
that such stockholder or beneficial owner intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting.
SECTION 2:2.5 Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 2:2. The chairman
of the meeting may, if the facts warrant, determine that the business was
not properly brought before the meeting in accordance with the provisions
of this Section 2:2; and if the chairman should so determine, the chairman
shall so declare to the meeting, and any such business not properly brought
before the meeting shall not be transacted.
Special Meetings.
SECTION 2:3. Special meetings of stockholders of the Corporation for
any purpose or purposes may be called at any time by the Chairman of the
Board, the Chief Executive Officer or a majority of the entire Board.
Special meetings of the stockholders of the Corporation 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 to each stockholder entitled to
vote at such meeting as provided in Section 2:5, and only such business as
is stated in such notice shall be acted upon thereat.
Place of Meetings.
SECTION 2:4. All meetings of the stockholders shall be held at the
principal office of the Corporation, or at such other place, within or
without the State of Delaware, as may be determined by the Board and stated
in the notice of the meeting.
Notice of Meetings.
SECTION 2:5. Written notice of each meeting of the stockholders
stating the place, date, and hour of the meeting, and, in case of a special
meeting or where otherwise required by statute, the purpose or purposes for
which the meeting is called, shall be delivered by mail not less than ten
nor more than sixty days before the date of the meeting, by or at the
direction of the person calling the meeting, to each stockholder entitled
to vote at such meeting. The notice of a stockholders' meeting shall be
deemed to be delivered when deposited in the United States mail
3
with postage prepaid, addressed to each stockholder at such stockholder's
address as it appears on the records of the Corporation.
Rules of Conduct.
SECTION 2:6. The Board of the Corporation shall be entitled to make
such rules or regulations for the conduct of meetings of stockholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board, if any, the chairman of the meeting shall have
the right and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are
necessary, appropriate or convenient for the proper conduct of the meeting,
including, without limitation, establishing an agenda or order of business
for the meeting, rules and procedures for maintaining order at the meeting
and the safety of those present, limitations on participation in such
meeting to stockholders of record of the Corporation and their duly
authorized and constituted proxies, and such other persons as the chairman
shall permit, restrictions on entry to the meeting after the time fixed for
the commencement thereof, limitations on the time allotted to questions or
comments by participants and regulation of the opening and closing of the
polls for balloting on matters which are to be voted on by ballot. Unless,
and to the extent, determined by the Board or the chairman of the meeting,
meeting of stockholders shall not be required to be held in accordance with
rules of parliamentary procedure.
Quorum and Voting.
SECTION 2:7.1 The holders of a majority of the outstanding shares (ex
clusive of treasury stock) entitled to vote at any meeting of the
stockholders, when present in person or by proxy, shall constitute a quorum
for the transaction of busi ness, except as otherwise provided by statute,
the Certificate of Incorporation of the Corporation or these Bylaws; but in
the absence of such a quorum the holders of a majority of the shares
represented at the meeting shall have the right successively to adjourn the
meeting to a specified date. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned
4
meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION 2:7.2 The absence from any meeting of the number of shares re
quired by statute, the Certificate of Incorporation of the Corporation or
these Bylaws for action upon one matter shall not prevent action at such
meeting upon any other matter or matters which may properly come before the
meeting, if the number of shares required in respect of such other matters
shall be present.
SECTION 2:7.3 When a quorum is present at any meeting of the stock
holders, the vote of the holders (present in person or represented by
proxy) of a majority of the shares of stock which are actually voted (and
have the power to vote) on any proposition or question properly brought to
a vote at such meeting shall decide any such proposition or question,
unless the proposition or question is one upon which by express provision
of statute or of the Certificate of Incorporation, or of these Bylaws, a
different vote is required, in which case such express provision shall
govern and establish the number of votes required to determine such proposi
tion or question.
Voting; Proxy.
SECTION 2:8.1 Whenever the law requires or the chairman of the meeting
orders that a vote be taken by ballot, each stockholder entitled to vote on
a particular question at a meeting of stockholders, pursuant to law or the
Certificate of Incorpo ration, shall be entitled to one vote for each share
of voting stock held by such stockholder. Shares standing in the names of
two or more persons shall be voted or represented in accordance with the
determination of the majority of such persons, or, if only one of such
persons is present in person or represented by proxy, such person shall
have the right to vote such shares and such shares shall be deemed to be
represented for the purpose of determining a quorum. The date for
determining the stockholders entitled to vote at a meeting of the
stockholders shall be determined pursuant to Section 5:8.
SECTION 2:8.2 Each stockholder entitled to vote at a meeting of stock
holders may authorize another person or persons to act for such stockholder
by proxy; but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law
to support an irrevocable power. A proxy may be
5
made irrevocable regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest in the
Corporation generally.
Voting by Fiduciaries, Pledgees and Pledgors.
SECTION 2:9. Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held. 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 has 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.
Nomination of Directors.
SECTION 2:10.1 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 expressly provided in the
Certificate of Incorporation of the Corporation 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 may be made at any annual meeting of
stockholders, (i) by or at the direction of the Board (or any duly
authorized committee thereof) or (ii) by any stockholder of the Corporation
who is a stockholder of record on the date of the giving of the notice
provided for in this Section 2:10 and on the record date for the
determination of stockholders entitled to vote at such meeting and who
complies with the notice procedures set forth in this Section 2:10.
SECTION 2:10.2 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.
SECTION 2:10.3 To be timely, a stockholder's notice to the Secretary
must be delivered or mailed to and received by the Secretary at the
principal executive offices of the Corporation not less than sixty days nor
more than ninety days prior to the first anniversary date of the preceding
year's annual meeting of stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within thirty days
before or after such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close of business on
the tenth day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever occurs first.
6
SECTION 2:10.4 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, series and the number of shares
of capital 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
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (ii) as to the stockholder giving the notice or
the beneficial owner on whose behalf the nomination is made, (A) the name
and address of such stock holder as they appear on the Corporation's books,
(B) the class or series and the number of shares of the Corporation's stock
which are beneficially owned by such stockholder or beneficial owner, (C) a
description of all arrangements or under standings between such stockholder
or beneficial owner 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 or beneficial owner, (D) a representation that
such stockholder or beneficial owner intends to appear in person or by
proxy at the meeting to nominate the persons named in its notice, and (E)
any other information relating to such stockholder or beneficial owner 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.
SECTION 2:10.5 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 2:10. 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.
List of Stockholders.
SECTION 2:11. The Secretary 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.
7
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 who is present. The stock ledger shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by this Section 2:11 or the books of the
Corporation, or to vote in person or by proxy at any meeting of
stockholders.
ARTICLE III: DIRECTORS
General Powers.
SECTION 3:1. The Board shall control and manage the business and
property of the Corporation. The Board may exercise all such powers of the
Corporation and do all lawful acts and things as are not by law, the
Certificate of Incorporation or these Bylaws directed or required to be
exercised or done by the stockholders or some particular officer of the
Corporation.
Number and Qualifications.
SECTION 3:2. The number of directors shall be determined from time to
time by resolution of the Board in accordance with the terms of Article
FIFTH of the Certificate of Incorporation.
Election; Resignation.
SECTION 3:3. Except as provided in the Certificate of Incorporation
with respect to the filling of vacancies, directors shall be elected by a
plurality of the votes cast at annual meetings of stockholders, and shall
hold office until the annual meeting for the year in which his term expires
and until his successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or
removal from office. Any director may resign at any time upon written
notice to the Secretary, such resignation to specify whether it will be
effective at a particular time, upon receipt by the Secretary or at the
pleasure of the Board. If no such specification is made, it shall be deemed
effective at the pleasure of the Board. Directors need not be stockholders.
The directors who are to be
8
elected at the annual meeting of the stockholders shall be elected by
ballot by the holders of shares entitled to vote.
Meetings.
SECTION 3:4.1. The Board of the Corporation may hold meetings, both
regular and special, either within or without the State of Delaware.
Regular meet ings of the Board may be held without notice at such time and
at such place as may from time to time be determined by the Board. Special
meetings of the Board may be called by the Chairman, if there be one, the
President or any director. 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 (48) hours before the date of the meeting, by telephone or
facsimile transmission on twenty-four (24) hours' notice, or on such
shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
SECTION 3:4.2. Members of the Board, or any committee designated by
the Board, may participate in a meeting of the Board or such committee by
means of conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other, and
participating in the meeting in this manner shall constitute presence in
person at such meeting.
Quorum.
SECTION 3:5. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, at all meetings of the
Board, a majority of the entire Board 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. If
a quorum shall not be present at any meeting of the Board, 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.
Committees.
SECTION 3:6. The Board shall have the following committees: a
Compensation Committee and an Audit Committee. The Board may, by resolution
passed by a majority of the entire Board, designate one or more additional
commit tees. Each committee shall consist of three or more of the directors
of the Corporation. The Board may designate one or more directors as
alternate members
9
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
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 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 in the
management of the business and affairs of the Corporation. Each committee
shall keep regular minutes and report to the Board when required.
Waiver of Notice.
SECTION 3:7. Any notice which is required by law or by the Certificate
of Incorporation or by these Bylaws to be given to any director may be
waived in writ ing, signed by such director, whether before or after the
time stated therein. Attendance of a director at any meeting shall
constitute waiver of notice of such meeting, except where a director
attends a meeting for the express purpose of objecting to the transaction
of any business because the meeting is not lawfully called or convened.
Consent.
SECTION 3:8. 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 all members of the Board (or committee) consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of the Board (or committee).
Notice to Members of the Board.
SECTION 3:9. Each member of the Board shall file with the Secretary of
the Corporation an address to which mail, by hand deliveries or overnight
commercial courier deliveries may be transmitted and, if appropriate, a
telephone number to which facsimile notices may be transmitted. A notice
mailed, delivered by hand or by overnight commercial courier (receipt
requested) or transmitted by facsimile (with confirmation receipt) in
accordance with the instructions provided by the director shall be deemed
sufficient notice. Such address or telephone number may be changed at any
time and from time to time by a director by giving written notice of such
change to the Secretary. Failure on the part of any director to keep
10
an address and, if applicable, telephone number on file with the Secretary
shall auto matically constitute a waiver of notice of any regular or
special meeting of the Board which might be held during the period of time
that such address and telephone number, if applicable, are not on file with
the Secretary. A notice shall be deemed to be mailed when deposited in the
United States mail, postage prepaid. A notice shall be deemed to be
delivered by hand or by overnight commercial courier or by facsimile
transmission when sent to the address or telephone number, as the case may
be, which the director has placed on file with the Secretary, and in the
case of facsimile transmission, when a confirmation receipt is received.
Presiding Officer.
SECTION 3:10. The Chairman of the Board shall preside at all meetings
of the Board at which the Chairman is present. In the absence of the
Chairman, the Board shall select a chairman of the meeting from among the
directors present.
Compensation.
SECTION 3:11. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board and may be paid a fixed sum for
attendance at each meeting of the Board or a stated retainer as director.
No such payment shall preclude any director from serving the Corporation in
any other capacity and receiving compensation therefor. Members of special
or standing committees may be allowed like compensation for attending
committee meetings.
Interested Directors.
SECTION 3:12. 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 or committee thereof which
authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) 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 or the committee, and the Board 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 (ii) the material
facts as to his or their relationship or interest and as to the contract or
transaction are dis-
11
closed 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 (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the
Board, 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 or of a committee which authorizes the contract or
transaction.
ARTICLE IV: OFFICERS
Appointment.
SECTION 4:1. At the annual meeting of the Board following their
election by the stockholders, the directors shall elect from its membership
a Chairman of the Board and a President. The Board shall elect such Vice
Presidents, a Secretary, a Treasurer, Assistant Secretaries, Assistant
Treasurers and such other officers, as the Board may from time to time deem
necessary or appropriate.
Tenure.
SECTION 4:2. Officers appointed by the Board shall hold their
respective offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board;
and all officers of the Corpora tion shall hold office until their
successors are chosen and qualified, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. Any
officer appointed by the Board may be removed by the Board with or without
a hearing and with or without cause whenever in its judgment the best inter
ests of the Corporation will be served thereby.
Salaries.
SECTION 4:3. The salaries of all officers of the Corporation shall be
fixed by the Board (or any committee thereof established for such purpose).
Chairman of the Board.
SECTION 4:4. The Chairman of the Board, if there be one, shall preside
at all meetings of the stockholders and of the Board. Either the Chairman
of the
12
Board or the President shall be the Chief Executive Officer of the
Corporation, and except where by law the signature of the President is
required, the Chairman of the Board shall possess the same power as the
President to sign certificates for the stock of the Corporation, with the
Secretary (or any Assistant Secretary) or Treasurer (or any Assistant
Treasurer), and all bonds, mortgages, contracts, and other instruments of
the Corporation which may be authorized by the Board or by such Chairman of
the Board or by the President 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, the Chairman of the Board or the President. During the
absence or disability of the President, the Chairman of the Board shall
exercise all the powers and discharge all the duties of the President.
President.
SECTION 4:5. The President shall have general supervision of the
business of the corporation and shall see that all orders and resolutions
of the Board or the Chairman of the Board are carried into effect. The
President may sign certificates for the stock of the Corporation, with the
Secretary (or any Assistant Secretary) or Treasurer (or any Assistant
Treasurer) and execute all deeds, bonds, mortgages, contracts and other
instruments of the Corporation authorized by the Board, by the Chairman of
the Board or by such President, 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, the Chairman of the Board or the President. In the
absence or disability of the Chairman of the Board, or if there be none,
the President shall preside at all meetings of the stockholders and the
Board.
Vice Presidents.
SECTION 4:6. Each Vice President shall have such powers, duties and
designations as the Board (or any committee thereof established for such
purpose) assigns to such Vice President. In the absence or disability of
the President and the Chairman of the Board, the Vice Presidents, in the
order designated by the Board, 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. Any Vice President may also sign
certificates for the stock of the Corporation, with the Secretary (or any
Assistant Secretary) or Treasurer (or any Assistant Treasurer), and, when
so authorized by these Bylaws, the Board, the Chairman of the Board or the
President, may also sign and execute in the name of the Corporation deeds,
13
mortgages, bonds, contracts or other instruments authorized by the Board,
and shall perform such other duties as from time to time may be assigned to
any Vice President by the Board, the Chairman of the Board or the
President.
Secretary.
SECTION 4:7. The Secretary shall attend all meetings of the Board 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, and shall perform such other duties as may
be prescribed by the Board or the President, under whose supervision such
Secretary 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, and if there be no Assistant Secretary, then either
the Board 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 be 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, any
Assistant Secretary, the Treasurer, any Assistant Treasurer or other
officer. The Board, the Chairman of the Board or the President may give
general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by such officer's 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. In the absence of the Secretary from any meeting, the
minutes shall be recorded by the person appointed for that purpose by the
presiding officer.
Treasurer.
SECTION 4:8. The Treasurer 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, the
Chairman of the Board or the President. The Treasurer shall disburse the
funds of the Corporation as may be ordered by the Board, taking proper
vouchers for such disbursements, and shall render to the President and the
Board at its regular meetings, or when the Board so requires, an account of
all transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board, the Treasurer shall give the
Corporation a
14
bond in such sum and with such surety or sureties as shall be satisfactory
to the Board for the faithful performance of the duties of the office and
for the restoration to the Corporation, in case of the Treasurer's 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.
Other Officers.
SECTION 4:9. In accordance with Section 4:1, such other officers as
the Board may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board. The Board 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 AND DIVIDENDS
Certificates for Shares.
SECTION 5:1. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i)
by the Chairman of the Board, the President or a Vice President and (ii) by
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation, certifying the number of shares owned by him
in the Corporation. Any or all of the signatures on a 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.
Transfers.
SECTION 5:2. Certificates representing shares of stock of the
Corporation shall be transferable only on the books of the Corporation by
the person or persons named in the certificate or by the attorney lawfully
constituted in writing represent ing such person or persons and upon
surrender of the certificate or certificates being transferred which
certificate shall be properly endorsed for transfer or accompanied by a
duly executed stock power. Whenever a certificate is endorsed by or
accompanied by a stock power executed by someone other than the person or
persons named in the certificate, evidence of authority to transfer shall
also be
15
submitted with the certificate. All certificates surrendered to the
Corporation for transfer shall be cancelled.
Regulations Governing Issuance and Transfers of Shares.
SECTION 5:3. The Board shall have the power and authority to make all
such rules and regulations as it shall deem expedient concerning the issue,
transfer and registration of certificates for shares of stock of the
Corporation.
Transfer Agents and Registrars.
SECTION 5:4. Transfer agents and registrars for the Corporation's
stock shall be banks, trust companies or other financial institutions
located within or without the State of Delaware as shall be appointed by
the Board, the Chairman of the Board or the President. The Board shall
define the authority of such transfer agents and registrars.
Lost or Destroyed Certificates.
SECTION 5:5. Where a certificate for shares of the Corporation has
been lost or destroyed, the Board may authorize the issuance of a new
certificate in lieu thereof upon satisfactory proof of such loss or
destruction, and upon the giving of an open penalty bond with surety
satisfactory to the Corporation's Treasurer and General Counsel, if there
be one, to protect the Corporation or any person injured by the issuance of
the new certificate from any liability or expense which it or they may
incur by reason of the original certificate's remaining outstanding, and
upon payment of the Corporation's reasonable costs incident thereto.
Fractions of Shares.
SECTION 5:6. The Corporation shall not issue fractions of a share. It
shall, however, (1) arrange for the disposition of fractional interests by
those entitled thereto, and (2) pay in cash the fair value of fractions of
a share as of the time when those entitled to receive such fractions are
determined, or (3) issue scrip or warrants in registered or bearer form
which shall entitle the holder to receive a certificate for a full share
upon the surrender of such scrip or warrants aggregating a full share.
Scrip or warrants shall not, unless otherwise provided therein, entitle the
holder to exercise voting rights, to receive dividends thereon, or to
participate in any of the assets of the Corporation in the event of
liquidation. The Board may cause scrip or warrants to be issued subject to
the conditions that the shares for which scrip or
16
warrants are exchangeable may be sold by the Corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or subject to any
other conditions which the Board may impose.
Determination of Stockholders.
SECTION 5:7. The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof, 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, save as expressly provided by
the laws of the State of Delaware.
Record Date.
SECTION 5:8. 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 allot ment or 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 may fix, in
advance, a record date, which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty days prior to
any other action. If no record date is fixed:
(1) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business
on the day next preceding the day on which notice is given, or, if notice
is waived, at the close of business on the day next preceding the day on
which the meeting is held.
(2) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board adopts the
resolution relating thereto.
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 may fix a new record date for
the adjourned meeting.
ARTICLE VI: OTHER SECURITIES OF THE CORPORATION
All bonds, debentures and other corporate securities of the
Corporation, other than stock certificates, may be signed (by manual or
facsimile signature) by the
17
Chairman of the Board, the President or any Vice President, or such other
person as may be authorized by the Board, and the corporate seal impressed
thereon or a facsimile of such seal imprinted thereon and attested (by
manual or facsimile signature) by the signature of the Secretary or an
Assistant Secretary, or the Treasurer or an Assistant Treasurer, or such
other person as may be authorized by the Board. Interest coupons
appertaining to any such bond, debenture or other corporate security, shall
be signed by the Chairman of the Board, the President, any Vice President,
Treasurer or any Assistant Treasurer of the Corporation, or such other
person as may be authorized by the Board, or bear imprinted thereon the
facsimile signature such person. In case any person who shall have signed
or attested any bond, debenture or other corporate security, or whose
facsimile signature shall appear thereon or on any such interest coupon,
shall have ceased to be an officer before the bond, debenture or other
corporate security so signed or attested shall have been delivered, such
bond, debenture or other corporate security nevertheless may be adopted by
the Corporation and issued and delivered as though the person who signed
the same or whose facsimile signature shall have been used thereon had not
ceased to be such officer of the Corporation.
ARTICLE VII: INDEMNIFICATION
General Indemnification.
SECTION 7:1. The Corporation shall indemnify to the fullest extent
autho rized or permitted by law (as now or hereafter in effect) any person
made, or threat ened to be made, a party to or otherwise involved in any
action or proceeding (whether civil or criminal or otherwise) by reason of
the fact that he, his testator or intestate, is or was a director or
officer of the Corporation or by reason of the fact that such director or
officer, at the request of the Corporation, is or was serving any other
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, in any capacity. Nothing contained herein shall affect
any rights to indemnification to which employees other than directors and
officers may be entitled by law. No amendment or repeal of this Section 7:1
shall apply to or have any effect on any right to indemnification provided
hereunder with respect to any acts or omissions occurring prior to such
amendment or repeal.
Insurance, Indemnification Agreements and Other Matters.
SECTION 7:2. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent
of the Corporation, or is serving at the request of the Corporation as a
director, officer,
18
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 to indemnify him against such liability under the provisions of the
law. The Corporation may create a trust fund, grant a security interest
and/or use other means (including, without limitation, letters of credit,
surety bonds and/or other similar arrangements), as well as enter into
contracts providing for indemnification to the fullest extent authorized or
permitted by law and including as part thereof any or all of the foregoing,
to ensure the payment of such sums as may become necessary to effect full
indemnification.
Nonexclusivity.
SECTION 7:3. The rights to indemnification conferred in this Article
VII shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, the Certificate of Incorporation of
the Corporation, these Bylaws or any agreement, vote of stockholders or
directors or otherwise.
ARTICLE VIII: MISCELLANEOUS
Voting Shares in Other Corporations.
SECTION 8:1. The Corporation may vote any and all shares of stock and
other securities having voting rights which may at any time and from time
to time be held by it in any other corporation or corporations and such
vote may be cast either in person or by proxy by such officer of the
Corporation as the Board may appoint or, in default of such appointment,
the Chairman, the President or a Vice President.
Execution of Other Papers and Documents.
SECTION 8:2. All checks, bills, notes, drafts, vouchers, warehouse
receipts, bonds, mortgages, contracts, registration certificates and all
other instruments, agreements, papers and documents of the Corporation
shall be signed or endorsed for the Corporation by such of its officers,
other employees and agents as the Board may from time to time determine, or
in the absence of such determina tion, by the Chairman of the Board, the
President or a Vice President.
19
Corporate Seal.
SECTION 8:3. The Board shall provide a suitable seal, containing the
name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware," which seal shall be in the custody of the
Secretary of the Corporation, and may provide for one or more duplicates
thereof to be kept in the custody of such other officers of the Corporation
as the Board may prescribe.
Books and Records.
SECTION 8:4. Except as the Board may from time to time direct or as
may be required by law, the Corporation shall keep its books and records at
its principal office.
Fiscal Year.
SECTION 8:5. The fiscal year of the Corporation shall be fixed by
resolution of the Board.
Amendments.
SECTION 8:6. These Bylaws may be amended, altered or repealed, or new
Bylaws may be adopted (a) by the affirmative vote of eighty percent of the
out standing stock of the Corporation entitled to vote thereon, or (b) by
the affirmative vote of the majority of the Board at any regular or special
meeting; provided that the notice of such meeting of stockholders or
directors, whether regular or special, shall specify as one of the purposes
thereof the making of such amendment, alteration or repeal.
20