EXHIBIT 3.24
------------
BY-LAWS
OF
FLUOR DANIEL GTI, INC.
(A Delaware Corporation)
FLUOR DANIEL GTI, INC.
BY-LAWS
TABLE OF CONTENTS
Page A-
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ARTICLE I. CERTIFICATE OF INCORPORATION................................................................... 52
Section 1.1 Contents............................................................................. 52
Section 1.2 Certificate in Effect................................................................ 52
ARTICLE 2. MEETING OF STOCKHOLDERS........................................................................ 52
Section 2.1 Place................................................................................ 52
Section 2.2 Annual Meeting....................................................................... 52
Section 2.3 Special Meetings..................................................................... 52
Section 2.4 Notice of Meetings................................................................... 53
Section 2.5 Affidavit of Notice.................................................................. 53
Section 2.6 Quorum............................................................................... 53
Section 2.7 Voting Requirements.................................................................. 53
Section 2.8 Proxies and Voting................................................................... 53
Section 2.9 Stockholder List..................................................................... 54
Section 2.10 Record Date......................................................................... 54
Section 2.11 Notice of Stockholder Business...................................................... 55
ARTICLE 3. DIRECTORS...................................................................................... 56
Section 3.1 Enumeration; Election and Term of Office............................................. 56
Section 3.2 Duties............................................................................... 56
Section 3.3 Compensation......................................................................... 56
Section 3.4 Reliance on Books.................................................................... 57
ARTICLE 4. MEETINGS OF THE BOARD OF DIRECTORS............................................................. 57
Section 4.1 Place................................................................................ 57
Section 4.2 Annual Meeting....................................................................... 57
Section 4.3 Regular Meetings..................................................................... 57
Section 4.4 Special Meetings..................................................................... 57
Section 4.5 Quorum............................................................................... 57
Section 4.6 Action Without Meeting............................................................... 57
Section 4.7 Telephone Meetings................................................................... 58
ARTICLE 5. COMMITTEES OF DIRECTORS........................................................................ 58
Section 5.1 Designation.......................................................................... 58
Section 5.2 Records of Meetings.................................................................. 58
ARTICLE 6. NOTICES........................................................................................ 58
Section 6.1 Method of Giving Notice.............................................................. 58
Section 6.2 Waiver............................................................................... 59
ARTICLE 7. OFFICERS....................................................................................... 59
Section 7.1 In General........................................................................... 59
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Page A-
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Section 7.2 Election of President, Secretary and Treasurer............................................. 59
Section 7.3 Election of Other Officers................................................................. 59
Section 7.4 Salaries................................................................................... 59
Section 7.5 Term of Office............................................................................. 59
Section 7.6 Duties of President and Chairman of the Board.............................................. 60
Section 7.7 Duties of Vice President................................................................... 60
Section 7.8 Duties of Secretary........................................................................ 60
Section 7.9 Duties of Assistant Secretary.............................................................. 60
Section 7.10 Duties of Treasurer....................................................................... 61
Section 7.11 Duties of Assistant Treasurer............................................................. 61
ARTICLE 8. RESIGNATIONS, REMOVALS AND VACANCIES................................................................. 61
Section 8.1 Directors.................................................................................. 61
Section 8.2 Officers................................................................................... 62
ARTICLE 9. CERTIFICATES OF STOCK................................................................................ 62
Section 9.1 Issuance of Stock.......................................................................... 62
Section 9.2 Right to Certificate; Form................................................................. 62
Section 9.3 Facsimile Signature........................................................................ 63
Section 9.4 Lost Certificates.......................................................................... 63
Section 9.5 Transfer of Stock.......................................................................... 63
Section 9.6 Registered Stockholders.................................................................... 63
ARTICLE 10. EXECUTION OF PAPERS................................................................................. 63
ARTICLE 11. FISCAL YEAR......................................................................................... 64
ARTICLE 12. SEAL................................................................................................ 64
ARTICLE 13. OFFICES............................................................................................. 64
ARTICLE 14. INDEMNIFICATION..................................................................................... 64
Section 14.1 Actions other than by or in the Right of the Corporation.................................. 64
Section 14.2 Actions by or in the Right of the Corporation............................................. 64
Section 14.3 Success on the Merits..................................................................... 65
Section 14.4 Specific Authorization.................................................................... 65
Section 14.5 Advance Payment........................................................................... 65
Section 14.6 Non-Exclusivity........................................................................... 65
Section 14.7 Insurance................................................................................. 65
Section 14.8 Continuation of Indemnification and Advancement of Expenses............................... 66
Section 14.9 Severability.............................................................................. 66
Section 14.10 Intent of Article........................................................................ 66
ARTICLE 15. AMENDMENTS.......................................................................................... 66
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FLUOR DANIEL GTI INC.
formerly
GROUNDWATER TECHNOLOGY, INC.
ARTICLE 1. CERTIFICATE OF INCORPORATION
Section 1.1 Contents. The name, location of principal office and
purposes of the Corporation shall be as set forth in its Amended and Restated
Certificate of Incorporation. These Bylaws, the powers of the Corporation and of
its Directors and stockholders, and all matters concerning the conduct and
regulation of the business of the Corporation shall be subject to such
provisions in regard thereto, if any, as are set forth in said Amended and
Restated Certificate of Incorporation. The Amended and Restated Certificate of
Incorporation is hereby made a part of these Bylaws.
Section 1.2 Certificate in Effect. All references in these By-laws
to the Amended and Restated Certificate of Incorporation shall be construed to
mean the Amended and Restated Certificate of Incorporation of the Corporation as
from time to time amended, including (unless the context shall otherwise
require) all certificates and any agreement of consolidation or merger filed
pursuant to the Delaware General Corporation Law, as amended.
ARTICLE 2. MEETING OF STOCKHOLDERS
Section 2.1 Place. All meetings of the stockholders may be held at
such place either within or without the State of Delaware as shall be designated
from time to time by the Board of Directors as stated in the notice of the
meeting or in any duly executed waiver of notice thereof.
Section 2.2 Annual Meeting. Annual meetings of stockholders shall
be held either in the month of September or October of each year at such
specific date and time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. If such annual meeting has
not been held as herein provided, a special meeting of the stockholders in lieu
of the annual meeting may be held, and any business transacted or elections held
at such special meeting shall have the same effect as if transacted or held at
the annual meeting, and in such case all references in these By-laws, except in
this Section 2.2, to the annual meeting of the stockholders shall be deemed to
refer to such special meeting.
Section 2.3 Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Amended and Restated Certificate of Incorporation, may be called by the Board of
Directors and shall be called by the President or Secretary at the request in
writing of a majority of the Directors then in office. Such request shall state
the purpose or purposes of the proposed meeting.
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Section 2.4 Notice of Meetings. A written notice of all meetings of
stockholders stating the place, date and hour of the meeting and, in the case of
a special meeting, the purpose or purposes for which the special meeting is
called, shall be given not less than ten nor more than sixty days before the
date of the meeting to each stockholder entitled to vote at such meeting.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
Section 2.5 Affidavit of Notice. An affidavit of the Secretary or
an Assistant Secretary or the transfer agent of the Corporation that notice of a
stockholders meetings has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
Section 2.6 Quorum. The holders of a majority of the stock issued
and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by statute or by the
Amended and Restated Certificate of Incorporation. If, however, such quorum
shall not be present or represented by any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, except as hereinafter provided, until a
quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be presented or represented any business may be transacted 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 meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 2.7 Voting Requirements. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any questions brought
before such meeting, unless the question is one upon which, by express provision
of any applicable statute or of the Amended and Restated Certificate of
Incorporation, a different vote is required, in which case such express
provision shall govern and control the decision of such questions.
Section 2.8 Proxies and Voting. Unless otherwise provided in the
Amended and Restated Certificate of Incorporation, each stockholder shall at
every meeting of the stockholders be entitled to one vote in person or by proxy
for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three years from its date,
unless the proxy provides for a longer period. Persons holding stock in a
fiduciary capacity shall be entitled to vote the shares so held, and persons
whose stock is pledged shall be entitled to vote the pledged shares, unless in
the transfer by the pledgor on the books of the Corporation he shall have
expressly empowered the pledgee to vote said shares, in which case only the
pledgee, or his proxy, may represent and vote such shares. Shares of the capital
stock of the Corporation owned by the Corporation shall not be voted, directly
or indirectly.
Section 2.9 Stockholder List. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order,
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and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting either at
a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. The original or duplicate stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine such list, the stock ledger or the books of the Corporation, or to vote
in person or by proxy at any meeting of stockholders.
Section 2.10 Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting provided, however, that the Board of Directors may fix a new record date
for the adjourned meeting.
If no record date is fixed by the Board of Directors:
(a) 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.
(b) The record date for determining stockholders entitled
to express consent to Corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be
the day which the first written consent is expressed.
(c) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 2.11 Notice of Stockholder Business. (a) For a proposal to
be properly brought before an annual meeting by a stockholder or for a
stockholder to nominate a person or persons for election as directors at an
annual meeting or any special meeting at which directors are to be elected, the
stockholder must give timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to, or
mailed and received at, the principal executive offices of the Corporation not
less than 45 days, but not more than 60 days, prior to the meeting; provided,
however, if less than 60 days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder
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to be timely must be so received not later than the close of business on the
15th business day following the day on which such notice or public disclosure of
the date of the meeting is made.
(b) A stockholder's notice to the Secretary relating to a proposal
shall set forth as to each matter the stockholder proposes to bring before the
annual meeting (i) a brief description of the proposal desired to be brought
before the annual meeting, (ii) the name and address, as they appear on the
Corporation's books, of the stockholder who intends to make the proposal and any
other stockholders known by such stockholder to support such proposal, (iii) the
class and number of shares of the Corporation's capital stock which are
beneficially owned by the stockholder and by any other stockholders known by
such stockholder to support such proposal as of the date of such stockholder
notice, and (iv) any financial interest of the stockholder in such proposal.
(c) A stockholder's notice to the Secretary relating to a nominee for
election as a director shall set forth (i) the name and address, as they appear
on the Corporation's books, of the stockholder who intends to make the
nomination and any other stockholder's known by such stockholder to support the
nomination, (ii) the class and number of shares of the Corporation's capital
stock which are beneficially owned by the stockholder and by any other
stockholders known by such stockholder to support such proposal as of the date
of such stockholder notice, (iii) a representation that such stockholder is a
holder of record of stock of the Corporation entitled to vote as such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice, (iv) a description of all
arrangements or understandings between such 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 such stockholder, (v) such other
information regarding each nominee proposed by such stockholder as would have
been required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had each nominee been nominated,
or intended to be nominated by the Board of Directors, and (vi) the consent of
each nominee to serve as a director of the Corporation if elected.
(d) The Board of Directors, or a designated committee thereof, may
determine whether a notice has complied with the requirements of this Section
2.11, and may reject as invalid any stockholder proposal or nomination which was
not the subject of a notice timely made in accordance with, and containing all
information required by, the terms of this Section 2.11. If neither the Board of
Directors nor such committee a determination as to the compliance with the
requirements of this Section 2.11, the presiding officers at the meeting shall
determine and declare at the meeting whether such notice has so complied. If the
Board of Directors or a designated committee thereof or the presiding officer
determines that a stockholder proposal or nomination was the subject of a notice
made in accordance with the terms of this Section 2.11, and if the stockholder
giving such notice shall make such proposal or nomination, the presiding officer
shall so declare at the meeting, and ballots shall be provided for use at the
meeting with respect to such proposal or nomination. If the Board of Directors
or a designated committee thereof or the presiding officer determines that a
stockholder proposal or nomination was not the subject of a notice made in
accordance with the terms of this Section 2.11, and if the
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stockholder giving such notice shall make such proposal or nomination, the
presiding officer shall so declare at the meeting and any such proposal shall
not be acted upon at the meeting.
(e) Notwithstanding the foregoing, a stockholder may present at an
annual meeting any proposal which such stockholder has caused to be included in
the Corporation's proxy materials pursuant to Rule 14a-8 promulgated pursuant to
the Securities Exchange Act of 1934, as amended.
(f) This Section 2.11 shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors
and committees of the Board of Directors, but in connection with such reports,
no new business shall be acted upon at such annual meeting unless stated, filed
and received as herein provided.
ARTICLE 3. DIRECTORS
Section 3.1 Enumeration; Election and Term of Office. The Board of
Directors shall consist of not more than seven Directors, except that whenever
there shall be only one stockholder the number of Directors shall be not less
than one. Except in the case of vacancies as set forth in Article 8, the
Directors shall be chosen at the annual meeting of the stockholders by such
stockholders as have the right to vote thereon, and each Director shall hold
office until the next annual meeting of the stockholders and until his successor
is elected and qualified, unless he sooner resigns or is removed in accordance
with Article 8 below.
Section 3.2 Duties. The business of the Corporation shall be
managed by or under the direction of its Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Amended and Restated Certificate of Incorporation or by
these By-laws directed or required to be exercised or done by the stockholders.
Section 3.3 Compensation. Unless otherwise restricted by the
Amended and Restated Certificate of Incorporation or these By-laws, the Board of
Directors shall have the authority to fix the compensation of Directors. The
Directors may be paid their expenses, if any, of attendance, at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as Director. No such
payment shall preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
Section 3.4 Reliance on Books. A member of Board of Directors or a
member of any committee designated by the Board of Directors shall, in the
performance of his duties, be duly protected in relying in good faith upon the
books of account or reports made to the Corporation by any of its officers, or
by an independent certified public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by any committee, or in relying in
good faith upon other records of the Corporation.
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ARTICLE 4. MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1 Place. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State of
Delaware.
Section 4.2 Annual Meeting. The first meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting of
stockholders or any special meeting held in lieu thereof and no notice of such
meeting shall be necessary to the newly elected Directors in order legally to
constitute the meeting.
Section 4.3 Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board.
Section 4.4 Special Meetings. Special meetings of the Board may be
called by the Chairman or President on two days' notice to each Director either
personally or by mail or by telegram; special meetings shall be called by the
President or Secretary in like manner and on like notice on the written request
of two Directors unless the Board consists of only one Director, in which case
special meetings shall be called by the President or Secretary in like manner
and on like notice on the written request of the sole Director.
Section 4.5 Quorum. At all meetings of the Board a majority of the
Directors then in office shall constitute a quorum for the transaction of
business and, except as otherwise provided in the Amended and Restated
Certificate of Incorporation or those By-laws, the act of a majority of the
Directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute or by the Amended and Restated Certificate of Incorporation. If a quorum
shall not be present at any meeting of the Board of Directors, the Directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Section 4.6 Action Without Meeting. Unless otherwise restricted by
the Amended and Restated Certificate of Incorporation or these By-laws, any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if all
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
Section 4.7 Telephone Meetings. Unless otherwise restricted by the
Amended and Restated Certificate of Incorporation or these By-laws, members of
the Board of Directors, or any committee designated by the Board of Directors,
may participate in a meeting of the Board of Directors, or any committee, by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
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ARTICLE 5. COMMITTEES OF DIRECTORS
Section 5.1 Designation. (a) The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the Directors of the
Corporation. The Board may designate one or more Directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee.
(b) In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
(c) Any such committee, to the extent provided in the resolution of
the Board of Directors designating the committee, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the Amended
and Restated Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-laws of the Corporation and, unless the
resolution or the Amended and Restated Certificate of Incorporation so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors.
Section 5.2 Records of Meetings. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
ARTICLE 6. NOTICES
Section 6.1 Method of Giving Notice. Whenever, under any provision
of the law or of the Amended and Restated Certificate of Incorporation or of
these By-laws, notice is required to be given to any Director or stockholder,
such notice shall be given in writing by the Secretary or the person or persons
calling the meeting by leaving such notice with such Director or stockholder at
his residence or usual place of business or by mailing it addressed to such
Director or stockholder at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to Directors may also be given by telegram.
Section 6.2 Waiver. Whenever any notice is required to be given
under any provision of law or of the Amended and Restated Certificate of
Incorporation or of these By-laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends the meeting
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for 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.
ARTICLE 7. OFFICERS
Section 7.1 In General. The officers of the Corporation shall be
chosen by the Board of Directors and shall include a President, a Secretary and
a Treasurer. The Board of Directors may also choose a Chairman of the Board, one
or more Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any
number of offices may be held by the same person, unless the Amended and
Restated Certificate of Incorporation or these By-laws otherwise provide. In
addition, the President may designate one or more employees or the Corporation
having the title of vice president or assistant vice president, but who shall
not be officers of the Corporation, who shall hold such titles at the pleasure
of the President and who shall have such powers and duties as the President may
from time to time designate.
Section 7.2 Election of President, Secretary and Treasurer. The
Board of Directors at its first meeting after each annual meeting of
stockholders shall choose a President, a Secretary and a Treasurer.
Section 7.3 Election of Other Officers. The Board of Directors may
appoint such other officers and agents as it shall deem appropriate who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board.
Section 7.4 Salaries. The salaries of all officers and agents of
the Corporation may be fixed by the Board of Directors.
Section 7.5 Term of Office. The officers of the Corporation shall
hold office until their successors are chosen and qualify. Any officer elected
or appointed by the Board of Directors may be removed at any time in the manner
specified in Section 8.2.
Section 7.6 Duties of President and Chairman of the Board. The
Board shall have a Chairman of the Board who shall preside at all meetings of
stockholders and at all meetings of the Board of Directors. The President shall
be the chief executive officer of the Corporation, shall preside at meetings of
the Board of Directors in the absence of the Chairman of the Board, shall have
general and active management of the business of the Corporation and shall see
that all orders and resolutions of the Board of Directors are carried into
effect. The President shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the Corporation except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation. The Chairman of the
Board, if any, shall make his counsel available to the other officers of the
Corporation, shall be authorized to sign stock certificates on behalf of the
Corporation, shall preside at all meetings of the Directors at which he is
present, and, in the absence of the President at all meetings of the
stockholders, and shall have such other duties and powers as may from time to
the be conferred upon him by the Directors.
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Section 7.7 Duties of Vice President. In the absence of the
President or in the event of his inability or refusal to act, the Vice President
(or in the event there be more than one Vice President, the Vice Presidents in
the order designated by the Directors, or in the absence of any designation,
then in the order of their election) shall perform the duties of the President
not otherwise conferred upon the Chairman of the Board, if any, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. The Vice Presidents shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 7.8 Duties of Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record all the proceedings of the meetings of the Corporation and of the Board
of Directors in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, except as otherwise provided in these By-laws, and shall perform such
other duties as may be prescribed by the Board of Directors or President, under
whose supervision he shall be. He shall have charge of the stock ledger (which
may, however, be kept by any transfer agent or agents of the Corporation under
his direction) and of the corporate seal of the Corporation.
Section 7.9 Duties of Assistant Secretary. The Assistant Secretary,
or if there be more than one, the Assistant Secretaries in the order determined
by the Board of Directors (or if there be no such determination, then in the
order of their election) shall, in the absence of the Secretary or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the Secretary and shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
Section 7.10 Duties of Treasurer. 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
of Directors. The Treasurer shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers from such
disbursements, and shall render the President and the Board of Directors, at its
regular meetings, or when the Board of Directors so requires, an account of all
of his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, he shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of this office and for the restoration to the Corporation. In case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
Section 7.11 Duties of Assistant Treasurer. The Assistant Treasurer,
or if there shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors (if there be no such determination, then in
the order of their election), shall, in the absence of the Treasurer or in the
event of his inability or refusal to act, perform the duties and exercise the
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powers of the Treasurer and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
ARTICLE 8. RESIGNATIONS, REMOVALS AND VACANCIES
Section 8.1 Directors. (a) Resignations. Any Director may resign at
any time by giving written notice to the Board of Directors or the President or
the Secretary. Such resignation shall take effect at the time specified therein;
and unless, otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
(b) Removals. Any Director may be removed from office or the entire
Board of Directors may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors, unless
otherwise specified by law or the Amended and Restated Certificate of
Incorporation.
The Directors may terminate or modify the authority of any agent or
employee. The Directors may remove any officer from office with or without
assignment of cause by vote of a majority of the Directors then in office.
If cause is assigned for removal of any Director or officer, such
Director or officer may be removed only after a reasonable notice and
opportunity to be heard before the body proposing to remove him.
No Director or officer who resigns or is removed shall have any right
to any compensation as such Director or officer for any period following his
resignation or removal, or any right to damages on account of such removal
whether his compensation be by the month or by the year or otherwise, provided,
however, that the foregoing provision shall not prevent such Director or officer
from obtaining damages for breach of any contract of employment legally binding
upon the Corporation.
(c) Vacancies. Vacancies resulting from any increase in the
authorized number of Directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause may be filled only by a majority vote of the Directors
then in office, though less than a quorum.
If the office of any officer becomes vacant, the Directors may choose
or appoint a successor by vote of a majority of the Directors present at the
meeting at which such choice or appointment is made.
Each successor director or officer shall hold office for the unexpired
term of his predecessor and until his successor shall be elected or appointed,
as the case may be, and qualified, or until he sooner dies, resigns, is removed
or becomes disqualified.
Section 8.2 Officers. The Board of Directors may, at any meeting
called for the purpose, by vote of a majority of their entire number, remove
from office any officer of the Corporation, with or without cause. The Board of
Directors may, at any meeting, by vote of a
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majority of the Directors present at such meeting, accept the resignation of any
officer of the Corporation or remove or accept the resignation of any employee
or agent or any member of any committee regardless of how appointed, and any
officer, agent or employee other than an executive officer may also be removed
with or without cause, or his resignation accepted by the committee or officer
which appointed such person. Any vacancy occurring in the office of President,
Secretary or Treasurer shall be filled by the Board of Directors and the
officers so chosen shall hold office subject to the By-laws for the unexpired
term in respect of which the vacancy occurred and until their successors shall
be elected and qualify.
ARTICLE 9. CERTIFICATES OF STOCK
Section 9.1 Issuance of Stock. The Directors may, at any time and
from time to time, if all of the shares of capital stock which the Corporation
is authorized by its Amended and Restated Certificate of Incorporation to issue
have not been issued, subscribed for, or otherwise committed to be issued, issue
or take subscriptions for additional shares of its capital stock up to the
amount authorized in its Amended and Restated Certificate or Incorporation. Such
stock shall be issued and the consideration paid therefor in the manner
prescribed by law.
Section 9.2 Right to Certificate; Form. Every holder of stock in
the Corporation shall be entitled to have a certificate, signed by, or in the
name of the Corporation by, the Chairman or the Board, the President or a Vice
President and the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of shares owned by
him in the Corporation. Certificates may be issued for partly paid shares and in
such case upon the face or back of the certificates issued to represent any such
partly paid shares, the total amount of the consideration to be paid therefor,
and the amount paid thereon shall be specified.
Section 9.3 Facsimile Signature. Any of or all the signatures on
the certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
Section 9.4 Lost Certificates. The Board of Directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates. The Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 9.5 Transfer of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Corporation to issue a
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new certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 9.6 Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof except as otherwise provided
by the laws of Delaware.
ARTICLE 10. EXECUTION OF PAPERS
Except as otherwise provided in these By-laws or as the Board of
Directors may generally or in particular cases otherwise determine, all deeds,
leases, transfers, contracts, bonds, notes, checks, drafts and other instruments
authorized to be executed on behalf of the Corporation shall be executed by the
President or the Treasurer.
ARTICLE 11. FISCAL YEAR
Except as from time to time otherwise provided by the Board of
Directors, the fiscal year of the Corporation shall be the twelve month period
ending on the Saturday closest to April 30.
ARTICLE 12. SEAL
The Corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the word "Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE 13. OFFICES
In addition to its principal office, the Corporation may have offices
at such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE 14. INDEMNIFICATION
Section 14.1 Actions other than by or in the Right of the
Corporation. The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the
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Corporation, and, with respect to any criminal action or proceedings, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which may
be reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 14.2 Actions by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such exercises which the Court of Chancery of the State of
Delaware or such other court shall deem proper.
Section 14.3 Success on the Merits. To the extent that any person
described in Sections 14.1 or 14.2 has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in said
Sections, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Section 14.4 Specific Authorization. Any indemnification under
Sections 14.1 or 14.2 (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of any person described in said Sections is proper in the
circumstances because he has met the applicable standard of conduct set forth in
said Sections. Such determination shall be made (1) by the Board of Directors by
a majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders of the
Corporation.
Section 14.5 Advance Payment. Expenses incurred in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf or any person
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described in said Section to repay such amount if it shall ultimately be
determined that he is not entitled to indemnification by the Corporation as
authorized in this Article 14.
Section 14.6 Non-Exclusivity. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other Sections of this Article
14 shall not be deemed exclusive of any other rights to which those provided
indemnification or advancement of expenses may be entitled under any By-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office.
Section 14.7 Insurance. The Board of Directors may authorize, by a
vote of the majority of the full board, the Corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust 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 this Article 14.
Section 14.8 Continuation of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 14 shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Section 14.9 Severability. If any word, clause or provision of this
Article 14 or any award made hereunder shall for any reason be determined to be
invalid, the provisions hereof shall not otherwise be affected thereby but shall
remain in full force and effect.
Section 14.10 Intent of Article. The intent of this Article 14 is to
provide for indemnification and advancement of expenses to the fullest extent
permitted by Section 14.5 of the General Corporation Law of Delaware. To the
extent that such Section or any successor section may be amended or supplemented
from time to time, this Article 14 shall be amended automatically and construed
so as to permit indemnification and advancement of expenses to the fullest
extent from time to time permitted by law.
ARTICLE 15. AMENDMENTS
These By-laws may be altered, amended or repealed or new By-laws may be
adopted by the stockholders or by a majority of the full Board of Directors when
such power is conferred upon the Board of Directors by the Amended and Restated
Certificate of Incorporation, at any regular meeting of the stockholders or of
the Board of Directors, or at any special meeting of the stockholders or of the
Board of Directors if notice of such alteration, amendment, repeal or adoption
of new By-laws is contained in the notice of such special meeting, or by the
unanimous
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written consent of the Directors. If the power to adopt, amend or repeal By-laws
is conferred upon the Board of Directors by the Certificate of Incorporation, it
shall not divest or limit the power of the stockholders to adopt, amend or
repeal By-laws.
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