EXHIBIT 3(b)
AMENDED AND RESTATED BYLAWS
OF
UNITED INDUSTRIAL CORPORATION
(a Delaware corporation)
(As adopted by the Board of Directors
of the Corporation on November 27, 1995)
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of UNITED
INDUSTRIAL CORPORATION (the "Corporation") in the State of Delaware shall be at
1209 Orange Street, in the City of Wilmington, County of New Castle and its
registered agent at such address shall be The Corporation Trust Company, or such
other office or agent as the Board of Directors of the Corporation (the "Board")
shall from time to time select.
SECTION 2. Other Offices. The Corporation may also have an office
or offices, and keep the books and records of the Corporation, except as may
otherwise be required by law, at such other place or places, either within or
without the State of Delaware, as the Board may from time to time determine or
the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meeting. All meetings of the stockholders of
the Corporation shall be held at the office of the Corporation or at such other
places, within or without the State of Delaware, as may from time to time be
fixed by the Board.
SECTION 2. Annual Meetings. The annual meeting of the
stockholders for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held each year at such
date and time, within or without the State of Delaware, as the Board shall
determine.
SECTION 3. Special Meetings. Except as otherwise required by law
or the Restated Certificate of Incorporation of the Corporation (the
"Certificate"), special meetings of the stockholders for any purpose or purposes
may be called by the majority of the entire Board or by stockholders holding
together at least twenty percent (20%) of all the shares of the Corporation
entitled to vote at the meeting and shall be held only for such business and at
such date and time, within or without the State of Delaware, as is specified in
the notice of any such special meeting of the stockholders.
SECTION 4. Notice of Meetings. Except as otherwise provided by
law, written notice of each meeting of the stockholders, whether annual or
special, shall be given, either by personal delivery or by mail, not less than
10 nor more than 60 days before the date of the meeting to each stockholder of
record entitled to notice of the meeting. If mailed, such notice shall be deemed
given when deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
Corporation. Each such notice shall state the place, date and hour of the
meeting, and the purpose or purposes for which the meeting is called. Notice of
any meeting of stockholders shall not be required to be given to any stockholder
who shall attend such meeting in person or by proxy without protesting, prior to
or at the commencement of the meeting, the lack of proper notice to such
stockholder, or who shall sign a written waiver of notice thereof, whether
before or after such meeting. Notice of adjournment of a meeting of stockholders
need not be given if the time and place to which it is adjourned are announced
at such meeting, unless the adjournment is for more than 30 days or, after
adjournment, a new record date is fixed for the adjourned meeting.
SECTION 5. Quorum. Except as otherwise provided by law or by the
Certificate, the holders of a majority of the votes entitled to be cast by the
stockholders entitled to vote generally, present in person or by proxy, shall
constitute a quorum for the transaction of business at any meeting of the
stockholders. At all meetings of the stockholders at which a quorum is present,
all matters, except as otherwise provided by law or the Certificate, shall be
decided by the vote of the holders of a majority of the shares entitled to vote
thereat present in person or by proxy. If there be no such quorum, the holders
of a majority of such shares so present or represented may adjourn the meeting
from time to time, without further notice, until a quorum shall have been
obtained. When a quorum is once present it is not broken by the subsequent
withdrawal of any stockholder.
SECTION 6. Order of Business. (a) At each meeting of the stock-
holders, the Chairman of the Board, if any, or if none or in the absence of the
Chairman of the Board, the Vice-Chairman, if any, or if none or in the absence
of the Vice-Chairman, such person as shall be selected by the Board shall act as
chairman of
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the meeting. The order of business at each such meeting shall be as determined
by the chairman of the meeting. The chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof, and the opening
and closing of the voting polls.
(b) At any annual meeting of stockholders, only such business
shall be conducted as shall have been brought before the annual meeting (i) by
or at the direction of the chairman of the meeting, (ii) pursuant to the notice
provided for in Section 4 of this Article II or (iii) by any stockholder who is
a holder of record at the time of the giving of such notice provided for in this
Section 6, who is entitled to vote at the meeting and who complies with the
procedures set forth in this Section 6.
(c) For business properly to be brought before an annual meeting
by a stockholder, the stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation (the "Secretary") and
such business must be a proper matter for stockholder action under the Delaware
General Corporation Law ("DGCL"). 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 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting of stockholders; provided,
however, that if the date of the annual meeting is advanced more than 30 days
prior to or delayed by more than 60 days after such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the 90th day
prior to such annual meeting and not later than the close of business on the
later of the 60th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made. To
be in proper written form, a stockholder's notice to the Secretary shall set
forth in writing 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 the
annual meeting; (ii) the name and address of the stockholder proposing such
business and all persons or entities acting in concert with the stockholder;
(iii) the class and number of shares of the Corporation which are beneficially
owned by the stockholder and all persons or entities acting in concert with such
stockholder; and (iv) any material interest of the stockholder in such business.
The foregoing notice requirements shall be deemed satisfied by a stockholder if
the stockholder has notified the Corporation of his or her intention to present
a proposal at an annual meeting and such stockholder's proposal has been
included in a proxy statement that has been prepared by management of the
Corporation to solicit proxies
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for such annual meeting; provided, however, that if such stockholder does not
appear or send a qualified representative to present such proposal at such
annual meeting, the Corporation need not present such proposal for a vote at
such meeting, notwithstanding that proxies in respect of such vote may have been
received by the Corporation. Notwithstanding anything in the Bylaws to the
contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 6. The chairman of an
annual meeting shall, if the facts warrant, determine that business was not
properly brought before the annual meeting in accordance with the provisions of
this Section 6 and, if the chairman should so determine, the chairman shall so
declare to the annual meeting and any such business not properly brought before
the annual meeting shall not be transacted.
SECTION 7. List of Stockholders. It shall be the duty of the
Secretary or other officer who has charge of the stock ledger to prepare and
make, at least 10 days before each meeting of the stockholders, a complete list
of the stockholders entitled to vote thereat, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in such stockholder's name.
SECTION 8. Voting. (a) At each meeting of stockholders, every
stockholder shall be entitled to vote in person or by proxy appointed by
instrument in writing, subscribed by such stockholder or by such stockholder's
duly authorized attorney-in-fact (but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period),
and, unless the Certificate provides otherwise, shall have one vote for each
share of stock entitled to vote registered in the name of such stockholder on
the books of the Corporation on the applicable record date fixed pursuant to
these Bylaws. At all elections of directors the voting may but need not be by
ballot and a plurality of the votes cast shall elect. Except as otherwise
required by law or the Certificate, any other action shall be authorized by a
majority of the votes cast.
(b) Any action required or permitted to be taken at any meeting
of stockholders may, except as otherwise required by law or the Certificate, be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
record of the issued and outstanding capital stock of the Corporation having a
majority of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted, and
the writing or writings are filed with the permanent records of the Corporation.
Prompt notice of the taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
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SECTION 9. Inspectors. The Board, in advance of any meeting, may,
but need not, appoint one or more inspectors of election to act at the meeting
or any adjournment thereof. If an inspector or inspectors are not so appointed,
the person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the Board in
advance of the meeting or at the meeting by the person presiding thereat. Each
inspector, if any, before entering upon the discharge of his or her duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum, and the validity and effect of proxies, and
shall receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such acts as are proper
to conduct the election or vote with fairness to all stockholders. On request of
the person presiding at the meeting, the inspector or inspectors, if any, shall
make a report in writing of any challenge, question or matter determined by such
inspector or inspectors and execute a certificate of any fact found by such
inspector or inspectors.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate directed or required to be
exercised or done by the stockholders.
SECTION 2. Number and Tenure. The Board of Directors shall be six
(6) in number, which number may be changed only pursuant to an amendment to
these Bylaws adopted by the affirmative vote of the holders of not less than
eighty percent (80%) of the outstanding shares of stock of the Corporation
entitled to vote on such amendment. Each director shall be elected to a term of
office to expire at such future annual meeting of stockholders as is appropriate
for the class of directors to which he is elected. The Board shall keep full and
fair records of its acts and proceedings and transactions. Directors need not be
stockholders.
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SECTION 3. Notification of Nomination. Nominations for the
election of directors may be made by the Board or by any stockholder who is a
stockholder of record at the time of giving of the notice of nomination provided
for in this Section 3 of this Article III and who is entitled to vote for the
election of directors. Any stockholder of record entitled to vote for the
election of directors at a meeting may nominate persons for election as
directors only if timely written notice of such stockholder's intent to make
such nomination is given, either by personal delivery or by United States mail,
postage prepaid, to the Secretary. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation (i) with respect to an election to be held at an annual meeting of
stockholders, not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting of stockholders; provided,
however, that if the date of the annual meeting is advanced more than 30 days
prior to or delayed by more than 60 days after such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the 90th day
prior to such annual meeting and not later than the close of business on the
later of the 60th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made and
(ii) with respect to an election to be held at a special meeting of stockholders
for the election of directors, not earlier than the 90th day prior to such
special meeting and not later than the close of business on the later of the
60th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board to be selected at such meeting. Each such
notice shall set forth: (i) the name and address of the stockholder who intends
to make the nomination, of all persons or entities acting in concert with the
stockholder, and of the person or persons to be nominated; (ii) a representation
that the stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (iii) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or entities acting in concert with the
stockholder (naming such person or entities) pursuant to which the nomination or
nominations are to be made by the stockholder; (iv) such other information
regarding each nominee proposed by the 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; (v) the class and number of shares of the
Corporation that are beneficially owned by the stockholder and all persons or
entities acting in concert with the stockholder; and (vi) the consent of each
nominee to being named in a proxy statement as nominee and to serve as a
director of the Corporation if so elected. The chairman of the meeting may
refuse to acknowledge the nomination of any person not made in compliance with
the foregoing procedure. Only such persons who are nominated in accordance with
the procedures
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set forth in this Section 3 of this Article III shall be eligible to serve as
directors of the Corporation.
Notwithstanding anything in the third sentence of this Section 3
of Article III to the contrary, in the event that the number of directors to be
elected to the Board is increased and there is no public announcement naming all
of the nominees for director or specifying the size of the increased Board made
by the Corporation at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by these Bylaws
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
For purposes of this section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the company with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended.
SECTION 4. Quorum and Manner of Acting. Except as otherwise
provided by law, the Certificate or these Bylaws, a majority of the entire Board
shall constitute a quorum for the transaction of business at any meeting of the
Board, and, except as so provided, the vote of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
Board. The chairman of the meeting or a majority of the directors present may
adjourn the meeting to another time and place whether or not a quorum is
present. At any adjourned meeting at which a quorum is present, any business may
be transacted which might have been transacted at the meeting as originally
called.
SECTION 5. Place of Meeting. The Board may hold its meetings at
such place or places within or without the State of Delaware as the Board may
from time to time determine or as shall be specified or fixed in the respective
notice or waivers of notice thereof.
SECTION 6. Annual Meeting. Following the annual meeting of
stockholders, the newly elected Board shall meet for the purpose of the election
of officers and the transaction of such other business as may properly come
before the meeting. Such meeting may be held without notice immediately after
the annual meeting of stockholders at the same place at which such stockholders'
meeting is held
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or at such other place as the Chairman of the Board, if any, or the Board shall
determine.
SECTION 7. Regular Meetings. Regular meetings of the Board shall
be held at such times and places as the Chairman of the Board, if any, or the
Board shall from time to time by resolution determine.
SECTION 8. Special Meetings. Special meetings of the Board shall
be held whenever called by the Chairman of the Board or by a majority of the
directors then in office.
SECTION 9. Notice of Meetings. Notice need not be given of
regular meetings of the Board held at times and places fixed by resolution of
the Board or of any adjourned meeting thereof. Notice of each special meeting of
the Board shall be given by overnight delivery service or mailed to each
director, in either case addressed to such director at such director's residence
or usual place of business, at least two days before the day on which the
meeting is to be held or shall be sent to such director at such place by
telegraph or telecopy or be given personally or by telephone, not later than the
day before the meeting is to be held, but notice need not be given to any
director who shall, either before or after the meeting, submit a signed waiver
of such notice or who shall attend such meeting other than for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting was not lawfully called or convened. Every such
notice shall state the time and place but need not state the purpose of the
meeting.
SECTION 10. Organization. At all meetings of the Board, the
Chairman, if any, or if none or in the Chairman's absence or inability to act,
the Vice-Chairman, if any, or if none or in the Vice-Chairman's absence or
inability to act, a chairman chosen by the directors, shall preside. The
Secretary of the Corporation shall act as secretary at all meetings of the Board
when present, and, in the Secretary's absence, the presiding officer may appoint
any person to act as secretary.
SECTION 11. Rules and Regulations. The Board may adopt such rules
and regulations not inconsistent with the provisions of law, the Certificate or
these Bylaws for the conduct of its meetings and management of the affairs of
the Corporation as the Board may deem proper.
SECTION 12. Participation in Meeting by Means of Communication
Equipment. Any one or more members of the Board or any committee thereof may
participate in any meeting of the Board or of any such committee by means of
conference telephone or similar communications equipment by means of which all
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persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
SECTION 13. Action without Meeting. Any action required or
permitted to be taken at any meeting of the Board or any committee thereof may
be taken without a meeting if all of the members of the Board or of any such
committee consent thereto in writing and the writing or writings are filed with
the minutes or proceedings of the Board or of such committee.
SECTION 14. Resignations. Any director of the Corporation may at
any time resign by giving written notice to the Chairman of the Board, if any,
the Vice-Chairman, if any, the President or the Secretary. Such resignation
shall take effect at the time specified therein or, if the time be not specified
therein, upon receipt thereof; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 15. Removal of Directors. Any director (including all
members of the Board) may be removed from office at any time, with or, except as
otherwise required by law or the Certificate, without cause, by the affirmative
vote of the holders of a majority of the voting power of all of the shares of
capital stock of the Corporation then entitled to vote generally in the election
of directors.
SECTION 16. Vacancies. Except as otherwise required by law, the
Certificate or these Bylaws, any vacancy in the Board for any reason and any
newly created directorship resulting by reason of any increase in the number of
directors may be filled only by the Board, by resolution adopted by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum (or by a sole remaining director); provided, however,
that if the directors then in office shall constitute less than a majority of
the whole Board (as constituted immediately prior to any such increase), upon
application of any stockholder or stockholders holding at least ten percent
(10%) of the total number of shares of the capital stock of the Corporation at
the time outstanding having the right to vote for directors, an election to fill
any such vacancy or vacancies or newly created directorship, or to replace the
director or directors chosen by the directors then in office as aforesaid may be
held as provided in Section 223 of the DGCL. If not so filled, any such vacancy
shall be filled by the stockholders at the next annual meeting or at a special
meeting called for that purpose. Any director so appointed shall hold office
until such future annual meeting of stockholders as is appropriate for the class
of directors to which he or she is elected and until his or her successor shall
be duly elected and qualified.
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SECTION 17. Compensation. Each director, in consideration of such
person serving as a director, shall be entitled to receive from the Corporation
such amount per annum and such fees for attendance at meetings of the Board or
of committees of the Board, or both, as the Board shall from time to time
determine. In addition, each director shall be entitled to receive from the
Corporation reimbursement for the reasonable expenses incurred by such person in
connection with the performance of such person's duties as a director. Nothing
contained in this Section 17 of this Article III shall preclude any director
from serving the Corporation or any of its subsidiaries in any other capacity
and receiving proper compensation therefor.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 1. Establishment of Committees of the Board of Directors.
The Board may, in accordance with and subject to the DGCL, from time to time
establish committees of the Board to exercise such powers and authorities of the
Board, and to perform such other functions, as the Board may from time to time
determine and specify in the resolution of appointment. Each committee must
consist of two or more directors of the Corporation.
SECTION 2. Procedure; Meetings; Quorum. Regular meetings of
committees of the Board, of which no notice shall be necessary, may be held at
such times and places as shall be fixed by resolution adopted by a majority of
the members thereof. Special meetings of any committee of the Board shall be
called at the request of a majority of the members thereof. Notice of each
special meeting of any committee of the Board shall be given by overnight
delivery service or mailed to each member, in either case addressed to such
member at such member's residence or normal place of business, at least two days
before the day on which the meeting is to be held or shall be sent to such
members at such place by telegraph or telecopy or be given personally or by
telephone, not later than the day before the meeting is to be held, but notice
need not be given to any member who shall, either before or after the meeting,
submit a signed waiver of such notice or who shall attend such meeting other
than for the express purpose of objecting, at the beginning of the meeting, to
the transaction of any business because the meeting was not lawfully called or
convened. Any special meeting of any committee of the Board shall be a legal
meeting without any notice thereof having been given, if all the members thereof
shall be present thereat. Notice of any adjourned meeting of any committee of
the Board need not be given. Any committee of the Board may adopt such rules and
regulations not inconsistent with the provisions of law, the Certificate or
these Bylaws for the conduct of its meetings as
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such committee of the Board may deem proper. A majority of the members of any
committee of the Board shall constitute a quorum for the transaction of business
at any meeting, and the vote of a majority of the members thereof present at any
meeting at which a quorum is present shall be the act of such committee. Each
committee of the Board shall keep written minutes of its proceedings and shall
report on such proceedings to the Board.
SECTION 3. Action by Written Consent. Any action required or
permitted to be taken at any meeting of any committee of the Board may be taken
without a meeting if all the members of the committee consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the committee.
SECTION 4. Term; Termination. In the event any person shall cease
to be a director of the Corporation, such person shall simultaneously therewith
cease to be a member of any committee appointed by the Board.
ARTICLE V
OFFICERS
SECTION 1. Number; Term of Office. The Board shall elect the
officers of the Corporation, which shall include a President and a Secretary,
and may include, by election or appointment, a Chairman of the Board, a
Vice-Chairman of the Board, one or more Vice-Presidents (any one or more of whom
may be given an additional designation of rank, such as "Executive
Vice-President" or "Senior Vice-President," or function), a Treasurer and such
Assistant Secretaries, such Assistant Treasurers and such other officers as the
Board may from time to time deem proper. Each officer shall have such powers and
duties as may be prescribed by these Bylaws and as may be assigned by the Board
or the President. Any two or more offices may be held by the same person. The
Board may from time to time authorize any officer to appoint and remove any such
other officers and agents and to prescribe their powers and duties. The Board
may require any officer or agent to give security for the faithful performance
of such person's duties.
SECTION 2. Term of Office; Removal; Remuneration. Each officer
shall hold office for such term as may be prescribed by the Board and until such
person's successor shall have been chosen and shall qualify, or until such
person's death or resignation, or until such person's removal in the manner
hereinafter provided. Any officer may be removed, either with or without cause,
by the Board. The
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remuneration of each officer shall be fixed by the Board or in such manner as
the Board shall provide.
SECTION 3. Resignation. Any officer may resign at any time by
giving notice to the Board, the President or the Secretary. Any such resignation
shall take effect at the date of receipt of such notice or at any later date
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 4. Vacancies. A vacancy in any office because of death,
resignation, removal or any other cause may be filled for the unexpired portion
of the term by the Board.
SECTION 5. Chairman of the Board; Powers and Duties. The Chairman
of the Board, if any, shall preside at all meetings of the stockholders and the
Board and shall have such other powers and duties as may from time to time be
assigned by the Board.
SECTION 6. Vice-Chairman of the Board; Powers and Duties. In case
of the absence or disability of the Chairman of the Board or a vacancy in the
office, the Vice-Chairman of the Board, if any, shall perform the duties of the
Chairman of the Board. The Vice-Chairman shall have such other powers and duties
as may from time to time be assigned by the Board.
SECTION 7. President and Chief Executive Officer. The President
shall be the chief executive officer of the Corporation and shall have general
management and supervision of the property, business and affairs of the
Corporation and over its other officers and may execute and deliver in the name
of the Corporation powers of attorney, contracts, bonds and other obligations
and instruments and shall have such other powers and perform such other duties
as customarily pertain to that office and as may be assigned by the Board or the
Chairman of the Board, if any.
SECTION 8. Vice-President; Powers and Duties. A Vice-President
may execute and deliver in the name of the Corporation powers of attorneys,
contracts, bonds and other obligations and instruments pertaining to the regular
course of the duties of said office and shall have such other powers and perform
such other duties as may be assigned by the President or the Board.
SECTION 9. Secretary and Assistant Secretary; Powers and Duties.
The Secretary shall attend all meetings of the stockholders and the Board and
shall keep the minutes for such meetings in one or more books provided for that
purpose. The
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Secretary shall be custodian of the corporate records, except those required to
be in the custody of the Treasurer or the Controller, shall keep the seal of the
Corporation, and shall execute and affix the seal of the Corporation to all
documents duly authorized for execution under seal on behalf of the Corporation,
and shall perform all of the duties incident to the office of Secretary, as well
as such other duties as may be assigned by the President or the Board.
The Assistant Secretaries shall perform such of the Secretary's
duties as the Secretary shall from time to time direct. In case of the absence
or disability of the Secretary or a vacancy in the office, an Assistant
Secretary designated by the Chairman of the Board, if any, or by the Secretary,
if the office is not vacant, shall perform the duties of the Secretary.
SECTION 10. Treasurer and Assistant Treasurers; Powers and
Duties. The Treasurer shall have care and custody of the funds and securities of
the Corporation, shall deposit such funds in the name and to the credit of the
Corporation with such depositories as the Treasurer shall approve, shall
disburse the funds of the Corporation for proper expenses and dividends, and as
may be ordered by the Board, taking proper vouchers for such disbursements, as
well as such other duties as may be assigned by the President or the Board.
The Assistant Treasurers shall perform such of the Treasurer's
duties as the Treasurer shall from time to time direct. In case of the absence
or disability of the Treasurer or a vacancy in the office, an Assistant
Treasurer designated by the Chairman of the Board, if any, or by the Treasurer,
if the office is not vacant, shall perform the duties of the Treasurer.
ARTICLE VI
INDEMNIFICATION
SECTION 1. Scope of Indemnification. (a) Each person who was or
is made a party or is threatened to be made a party to or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
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 or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or
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agent or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the DGCL, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than permitted
prior thereto), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators; provided,
however, that, except as provided in Section 3 of this Article VI with respect
to proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board.
(b) If an indemnitee is not entitled to indemnification with
respect to a portion of any liabilities to which such person may be subject, the
Corporation shall nonetheless indemnify such indemnitee to the maximum extent
for the remaining portion of the liabilities.
(c) The termination of a 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 indemnitee is not entitled
to indemnification.
(d) To the extent permitted by law, the payment of
indemnification provided for by this Article, including the advancement of
expenses pursuant to Section 2 of this Article VI, with respect to proceedings
other than those brought by or in the right of the Corporation, shall be subject
to the conditions that the indemnitee shall give the Corporation prompt notice
of any proceeding, that the Corporation shall have complete charge of the
defense of such proceeding and the right to select counsel for the indemnitee,
and that the indemnitee shall assist and cooperate fully in all matters
respecting the proceeding and its defense or settlement. The Corporation may
waive any or all of the conditions set forth in the preceding sentence. Any such
waiver shall be applicable only to the specific payment for which the waiver is
made and shall not in any way obligate the Corporation to grant such waiver at
any future time. In the event of a conflict of interest between the indemnitee
and the Corporation that would disqualify the Corporation's counsel from
representing the indemnitee under the rules of professional conduct applicable
to attorneys, it shall be the policy of the Corporation to waive any or all of
the foregoing conditions subject to such limitations or conditions as the
Corporation shall deem to be reasonable in the circumstances.
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SECTION 2. Advancing Expenses. The right to indemnification
conferred in Section 1 of this Article VI shall include the right to be paid by
the Corporation the expenses incurred in defending any proceeding for which such
right to indemnification is applicable in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if required
by the DGCL, an advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of
such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (hereinafter a "final adjudication") that such indemnitee is not entitled
to be indemnified for such expenses under this Section or otherwise. No advance
shall be made by the Corporation if a determination is reasonably and promptly
made by a majority vote of disinterested directors, even if the disinterested
directors constitute less than a quorum, or (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, that, based upon the facts known
to the Board or counsel at the time such determination is made, the indemnitee
has acted in such a manner as to permit or require the denial of indemnification
pursuant to the provisions of Section 1 of this Article VI.
SECTION 3. Right of Indemnitee to Bring Suit. The rights to
indemnification and to the advancement of expenses conferred in Sections 1 and 2
of this Article VI shall be contract rights. If a claim under Sections 1 and 2
of this Article VI is not paid in full by the Corporation within sixty days
after a written claim has been received by the Corporation, except in the case
of a claim for an advancement of expenses, in which case the applicable period
shall be twenty days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In any suit brought by (a) the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that the
indemnitee has not met the applicable standard of conduct; and (b) the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the Corporation shall be entitled to recover such expenses upon a
final adjudication that the indemnitee has not met any applicable standard for
indemnification set forth in the DGCL. Neither the failure of the Corporation
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
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suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the DGCL, nor an actual determination by the Corporation (including its board of
directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Section or otherwise shall be on the
Corporation.
SECTION 4. Non-Exclusivity of Rights. The rights to
indemnification and to the advancement of expenses conferred in this Article VI
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Certificate, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 5. Insurance, Contracts and Funding. The Corporation may
purchase and maintain insurance to protect itself and any indemnitee against any
expenses, judgments, fines and amounts payable as specified in this Article VI,
to the fullest extent permitted by applicable law as then in effect. The
Corporation may enter into contracts with any indemnitee in furtherance of the
provisions of this Article VI and may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of credit)
to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Article VI.
SECTION 6. Effects of Amendments. Neither the amendment or repeal
of, nor the adoption of a provision inconsistent with, any provision of this
Article VI (including, without limitation, this Section 6) shall adversely
affect the rights of any indemnitee under this Article VI with respect to any
proceeding commenced or threatened prior to such amendment, repeal or adoption
of an inconsistent provision.
SECTION 7. Severability. If any provision or provisions of this
Article VI shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Article VI (including, without limitation, all portions of
any paragraph of this Article VI containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (b) to
the fullest extent possible, the provisions of this Article VI (including,
without limitation, all portions of any paragraph of this Article VI
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containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Share Ownership. (a) Holders of shares of stock of the
Corporation shall be recorded on the books of the Corporation and ownership of
such stock shall be evidenced by a certificate or other form as shall be
approved by the Board. Certificates representing shares of stock of each class
shall be signed by, or in the name of, the Corporation by the President or any
Vice President and by the Secretary or any Assistant Secretary or the Treasurer
or any Assistant Treasurer of the Corporation, and sealed with the seal of the
Corporation, which may be a facsimile thereof. Any or all such signatures and
the signatures of any transfer agent or registrar may be facsimiles. Although
any officer, transfer agent or registrar whose manual or facsimile signature is
affixed to such a certificate ceases to be such officer, transfer agent or
registrar before such certificate has been issued, the certificate may
nevertheless be issued by the Corporation with the same effect as if such
officer, transfer agent or registrar were still such at the date of its issue.
(b) The stock ledger and blank share certificates shall be kept
by the Secretary or by a transfer agent or by a registrar or by any officer or
agent designated by the Board.
SECTION 2. Transfer of Shares. Transfers of shares of stock of
each class of the Corporation shall be made only on the books of the Corporation
by the holder thereof, or by such holder's attorney thereunto authorized by a
power of attorney duly executed and filed with the Secretary or a transfer agent
for such stock, if any, and on surrender of the certificate or certificates, if
any, for such shares properly endorsed or accompanied by a duly executed stock
transfer power (or by proper evidence of succession, assignment or authority to
transfer) and the payment of any taxes thereon; provided, however, that the
Corporation shall be entitled to recognize and enforce any lawful restriction on
transfer.
SECTION 3. Registered Stockholders and Addresses of Stockholders.
(a) The Corporation shall be entitled to recognize the exclusive right of a
person registered on its records as the owner of shares of stock to receive
dividends and to vote as such owner, and shall not be bound to recognize any
equitable or other claim
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to, or interest in, such share or shares of stock on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by applicable law.
(b) Each stockholder shall designate to the Secretary or transfer
agent of the Corporation an address at which notices of meetings and all other
corporate notices may be delivered or mailed to such person, and, if any
stockholder shall fail to designate such address, corporate notices may be
delivered to such person by mail directed to such person at such person's post
office address, if any, as the same appears on the stock record books of the
Corporation or at such person's last known post office address.
SECTION 4. Lost, Stolen, Destroyed and Mutilated Certificates.
The Corporation may issue to any holder of shares of stock the certificate for
which has been lost, stolen, destroyed or mutilated a new certificate or
certificates for shares, upon the surrender of the mutilated certificate or, in
the case of loss, theft or destruction of the certificate, upon satisfactory
proof of such loss, theft or destruction. The Board, or a committee designated
thereby, or the transfer agents and registrars for the stock, may, in their
discretion, require the owner of the lost, stolen or destroyed certificate, or
such person's legal representative, to give the Corporation a bond in such sum
and with such surety or sureties as they may direct to indemnify the Corporation
and said transfer agents and registrars against any claim that may be made on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
SECTION 5. Regulations. The Board may make such additional rules
and regulations as it may deem expedient concerning the issue and transfer of
certificates representing shares of stock of each class of the Corporation and
may make such rules and take such action as it may deem expedient concerning the
issue of certificates in lieu of certificates claimed to have been lost,
destroyed, stolen or mutilated.
SECTION 6. Fixing Date for Determination of Stockholders of
Record. (a) 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, the Board may fix, in advance, a record date, which shall
not be more than 60 nor less than 10 days before the date of such meeting. If no
record date is fixed by the Board, 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. A determination of stockholders
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entitled to notice of or to vote at a meeting of the stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board, and which date
shall not be more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board. Any stockholder of record seeking to
have the stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary, request the Board to fix a record
date. The Board shall promptly, but in all events within 10 days after the date
on which such a request is received, adopt a resolution fixing the record date.
If no record date has been fixed by the Board within 10 days of the date on
which such a request is received, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no
prior action by the Board is required by applicable law, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or any officer or agent
of the Corporation having custody of the books in which proceedings of meetings
of stockholders are recorded. Delivery made to the Corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board and prior action by the
Board is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the board adopts
the resolution taking such prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders 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 a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted and
which record date shall be not more than 60 days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
SECTION 7. Transfer Agents and Registrars. The Board may appoint,
or authorize any officer or officers to appoint, one or more transfer agents and
one or more registrars.
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ARTICLE VIII
DIVIDENDS
Subject always to the provisions of law and the Certificate, the
Board shall have full power to determine whether any, and, if any, what part of
any, funds legally available for the payment of dividends shall be declared as
dividends and paid to stockholders; the division of the whole or any part of
such funds of the Corporation shall rest wholly within the lawful discretion of
the Board, and it shall not be required at any time, against such discretion, to
divide or pay any part of such funds among or to the stockholders as dividends
or otherwise; and before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
Board from time to time, in its absolute discretion, thinks proper as a reserve
or reserves to meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the Corporation, or for such other purpose as the
Board shall think conducive to the interest of the Corporation, and the Board
may modify or abolish any such reserve in the manner in which it was created.
ARTICLE IX
CORPORATE SEAL
The Board shall provide a corporate seal which shall have
inscribed thereon the name of the Corporation and the year of its incorporation,
and shall be in such form and contain such other words and/or figures as the
Board shall determine. The corporate seal may be used by printing, engraving,
lithographing, stamping or otherwise making, placing or affixing, or causing to
be printed, engraved, lithographed, stamped or otherwise made, placed or
affixed, upon any paper or document, by any process whatsoever, an impression,
facsimile or other reproduction of said corporate seal.
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ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall be
subject to change, by the Board. Unless otherwise fixed by the Board, the fiscal
year of the Corporation shall be the calendar year.
ARTICLE XI
WAIVER OF NOTICE
Whenever notice is required to be given by these Bylaws, by the
Certificate or by law, a written waiver thereof, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent to notice.
ARTICLE XII
BANK ACCOUNTS, DRAFTS, CONTRACTS, ETC.
SECTION 1. Bank Accounts and Drafts. In addition to such bank
accounts as may be authorized by the Board, the primary financial officer or any
person designated by said primary financial officer, whether or not an employee
of the Corporation, may authorize such bank accounts to be opened or maintained
in the name and on behalf of the Corporation as he may deem necessary or
appropriate, payments from such bank accounts to be made upon and according to
the check of the Corporation in accordance with the written instructions of said
primary financial officer, or other person so designated by the Treasurer.
SECTION 2. Contracts. The Board may authorize any person or
persons, in the name and on behalf of the Corporation, to enter into or execute
and deliver any and all deeds, bonds, mortgages, contracts and other obligations
or instruments, and such authority may be general or confined to specific
instances.
SECTION 3. Proxies; Powers of Attorney; Other Instruments. The
Chairman, if any, the President or any other person designated by either of them
shall have the power and authority to execute and deliver proxies, powers of
attorney and other instruments on behalf of the Corporation in connection with
the rights and powers
21
incident to the ownership of stock by the Corporation. The Chairman, if any, the
President or any other person authorized by proxy or power of attorney executed
and delivered by either of them on behalf of the Corporation may attend and vote
at any meeting of stockholders of any company in which the Corporation may hold
stock, and may exercise on behalf of the Corporation any and all of the rights
and powers incident to the ownership of such stock at any such meeting, or
otherwise as specified in the proxy or power of attorney so authorizing any such
person. The Board, from time to time, may confer like powers upon any other
person.
SECTION 4. Financial Reports. The Board may appoint the primary
financial officer or other fiscal officer and/or the Secretary or any other
officer to cause to be prepared and furnished to stockholders entitled thereto
any special financial notice and/or financial statement, as the case may be,
which may be required by any provision of law.
ARTICLE XIII
AMENDMENTS
The Board shall have the power to adopt, amend or repeal the
Bylaws by the affirmative vote of at least a majority of the members then in
office. Bylaws adopted by the Board may be repealed or changed, and new Bylaws
made, by the stockholders, and the stockholders may prescribe that any Bylaw
made by them shall not be altered, amended or repealed by the Board.
Notwithstanding the foregoing, however, no amendment shall alter, change or
repeal any of the provisions of Section 2 of Article III hereof unless adopted
by the affirmative vote of the holders of not less than eighty percent (80%) of
the outstanding shares of stock of the Corporation entitled to vote on such
amendment.
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