AMENDED AND RESTATED
BYLAWS
OF
SILICON LABORATORIES INC.,
A DELAWARE CORPORATION
TABLE OF CONTENTS
PAGE
----
ARTICLE I. Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Registered Office. . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Other Offices. . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE III. Stockholders' Meetings. . . . . . . . . . . . . . . . . . . . . 1
Section 3.1 Place of Meetings. . . . . . . . . . . . . . . . . . . . 1
Section 3.2 Annual Meeting.. . . . . . . . . . . . . . . . . . . . . 2
Section 3.3 Special Meetings.. . . . . . . . . . . . . . . . . . . . 4
Section 3.4 Notice of Meetings . . . . . . . . . . . . . . . . . . . 4
Section 3.5 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.6 Adjournment and Notice of Adjourned Meetings . . . . . . 5
Section 3.7 Voting Rights. . . . . . . . . . . . . . . . . . . . . . 5
Section 3.8 Joint Owners of Stock. . . . . . . . . . . . . . . . . . 5
Section 3.9 List of Stockholders . . . . . . . . . . . . . . . . . . 5
Section 3.10 No Action Without Meeting. . . . . . . . . . . . . . . . 6
Section 3.11 Organization.. . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV. Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.1 Number and Term of Office; Classification. . . . . . . . 7
Section 4.2 Powers . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.3 Vacancies. . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.4 Resignation. . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.5 Removal. . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.6 Meetings.. . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.7 Quorum and Voting. . . . . . . . . . . . . . . . . . . . 9
Section 4.8 Action Without Meeting . . . . . . . . . . . . . . . . . 9
Section 4.9 Fees and Compensation. . . . . . . . . . . . . . . . . .10
Section 4.10 Committees.. . . . . . . . . . . . . . . . . . . . . . .10
ARTICLE V. Officers 11 . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Section 5.1 Officers Designated. . . . . . . . . . . . . . . . . . .11
Section 5.2 Tenure and Duties of Officers. . . . . . . . . . . . . .12
Section 5.3 Delegation of Authority. . . . . . . . . . . . . . . . .14
Section 5.4 Resignations . . . . . . . . . . . . . . . . . . . . . .14
Section 5.5 Removal. . . . . . . . . . . . . . . . . . . . . . . . .14
ARTICLE VI. Execution of Corporate Instruments and Voting of Securities Owned by
the Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Section 6.1 Execution of Corporate Instruments . . . . . . . . . . .15
Section 6.2 Voting of Securities Owned by the Corporation. . . . . .15
ii
ARTICLE VII. Shares of Stock . . . . . . . . . . . . . . . . . . . . . . . .16
Section 7.1 Form and Execution of Certificates . . . . . . . . . . .16
Section 7.2 Lost Certificates. . . . . . . . . . . . . . . . . . . .16
Section 7.3 Transfers. . . . . . . . . . . . . . . . . . . . . . . .16
Section 7.4 Fixing Record Dates. . . . . . . . . . . . . . . . . . .17
Section 7.5 Registered Stockholders. . . . . . . . . . . . . . . . .17
ARTICLE VIII. Other Securities of the Corporation. . . . . . . . . . . . . .17
Section 8.1 Execution of Other Securities. . . . . . . . . . . . . .17
ARTICLE IX. Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 9.1 Declaration of Dividends . . . . . . . . . . . . . . . .18
Section 9.2 Dividend Reserve . . . . . . . . . . . . . . . . . . . .18
ARTICLE X. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . .19
ARTICLE XI. Indemnification of Directors, Officers, Employees and Other
Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Section 11.1 Directors and Executive Officers . . . . . . . . . . . .19
Section 11.2 Other Officers, Employees and Other Agents . . . . . . .19
Section 11.3 Good Faith.. . . . . . . . . . . . . . . . . . . . . . .19
Section 11.4 Expenses . . . . . . . . . . . . . . . . . . . . . . . .20
Section 11.5 Enforcement. . . . . . . . . . . . . . . . . . . . . . .20
Section 11.6 Non-Exclusivity of Rights. . . . . . . . . . . . . . . .21
Section 11.7 Survival of Rights . . . . . . . . . . . . . . . . . . .21
Section 11.8 Insurance. . . . . . . . . . . . . . . . . . . . . . . .21
Section 11.9 Amendments . . . . . . . . . . . . . . . . . . . . . . .21
Section 11.10 Savings Clause . . . . . . . . . . . . . . . . . . . . .21
Section 11.11 Certain Definitions. . . . . . . . . . . . . . . . . . .22
ARTICLE XII. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Section 12.1 Notice to Stockholders . . . . . . . . . . . . . . . . .23
Section 12.2 Notice to Directors. . . . . . . . . . . . . . . . . . .23
Section 12.3 Address Unknown. . . . . . . . . . . . . . . . . . . . .23
Section 12.4 Affidavit of Mailing . . . . . . . . . . . . . . . . . .23
Section 12.5 Time Notices Deemed Given. . . . . . . . . . . . . . . .23
Section 12.6 Failure to Receive Notice. . . . . . . . . . . . . . . .23
Section 12.7 Notice to Person with Whom Communication Is Unlawful . .24
Section 12.8 Notice to Person with Undeliverable Address. . . . . . .24
ARTICLE XIII. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . .24
Section 13.1 Amendments . . . . . . . . . . . . . . . . . . . . . . .24
Section 13.2 Application of Bylaws. . . . . . . . . . . . . . . . . .25
ARTICLE XIV. Loans to Officers . . . . . . . . . . . . . . . . . . . . . . .25
iii
AMENDED AND RESTATED
BYLAWS
OF
SILICON LABORATORIES INC.,
A DELAWARE CORPORATION
- ------------------------------------------------------------------------------
ARTICLE I.
OFFICES
Section 1.1 REGISTERED OFFICE. The registered office of the
corporation shall be the registered office named in the certificate of
incorporation of the corporation, or such other office as may be designated from
time to time by the Board of Directors in the manner provided by law.
Section 1.2 OTHER OFFICES. 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. The books of the corporation may be kept (subject to any provision
contained in the Delaware General Corporation Law) outside the State of Delaware
at such place or places as may be designated from time to time by the Board of
Directors or in these Bylaws.
ARTICLE II.
CORPORATE SEAL
The corporate seal shall consist of a die bearing the name of the
corporation. Said seal may be used by causing it, or a facsimile thereof, to be
impressed, affixed or reproduced.
ARTICLE III.
STOCKHOLDERS' MEETINGS
Section 3.1 PLACE OF MEETINGS. Meetings of the stockholders of the
corporation shall be held at such place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors, or,
if not so designated, then at the principal executive offices of the
corporation.
Section 3.2 ANNUAL MEETING.
(a) The annual meeting of the stockholders of the corporation,
for the purpose of election of Directors and for such other business as may
lawfully come before it, shall be held on such date and at such time as may be
designated from time to time by the Board of Directors.
(b) At an annual meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business must be:
(A) specified in the notice of meeting (or any supplement thereto) given by or
at the direction of the Board of Directors; (B) otherwise properly brought
before the meeting by or at the direction of the Board of Directors; or
(C) otherwise properly brought before the meeting by a stockholder. For
business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given 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 by the Secretary of the corporation not later than the close
of business on the one hundred twentieth (120th) day prior to the first
anniversary of the date of the proxy statement delivered to stockholders in
connection with the preceding year's annual meeting; provided, however, that if
either (i) the date of the annual meeting is advanced more than thirty (30) days
or delayed (other than as a result of adjournment) more than sixty (60) days
from such an anniversary date or (ii) no proxy statement was delivered to
stockholders in connection with the preceding year's annual meeting, notice by
the stockholder to be timely must be so delivered not earlier than the close of
business on the ninetieth (90th) day prior to such annual meeting and not later
than the close of business on the later of the sixtieth (60th) day prior to such
annual meeting or the close of business on the tenth (10th) day following the
day on which public announcement of the date of such meeting is first made by
the corporation. To be in proper form, a stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the
annual meeting:
(i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting
such business at the annual meeting;
(ii) a representation that the stockholder is a holder of
record of stock of the corporation entitled to vote at such
meeting and, if applicable, intends to appear in person or by
proxy at the meeting to nominate the person or persons specified
in the notice or introduce the business specified in the notice;
(iii) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business;
(iv) the class and number of shares of the corporation
which are beneficially owned by the stockholder;
(v) any material interest of the stockholder in such
business; and
(vi) any other information that is required to be
provided by the stockholder pursuant to Regulation 14A under the
Securities Exchange Act of
2
1934, as amended (the "Exchange Act"), in such stockholder's
capacity as a proponent of a stockholder proposal.
The chairman of the meeting shall determine whether any business
proposed to be transacted by the stockholders has been properly brought before
the meeting and, if any proposed business has not been properly brought before
the meeting, the chairman shall declare that such proposed business shall not be
presented for stockholder action at the meeting. For purposes of this Section
3.2, "public announcement" shall mean disclosure in a press release reported by
the Dow Jones News Service, Associated Press or comparable national news service
or in a document publicly filed by the corporation with the Securities and
Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
Notwithstanding any provision in this Section 3.2 to the contrary, requests for
inclusion of proposals in the corporation's proxy statement made pursuant to
Rule 14a-8 under the Exchange Act shall be deemed to have been delivered in a
timely manner if delivered in accordance with such Rule. Notwithstanding
compliance with the requirements of this Section 3.2, the chairman presiding at
any meeting of the stockholders may, in his sole discretion, refuse to allow a
stockholder or stockholder representative to present any proposal which the
corporation would not be required to include in a proxy statement under any rule
promulgated by the Securities and Exchange Commission.
(c) Only persons who are nominated in accordance with the
procedures set forth in this paragraph shall be eligible for election as
Directors. Nominations of persons for election to the Board of Directors of the
corporation may be made at a meeting of stockholders by or at the direction of
the Board of Directors or by any stockholder of the corporation entitled to vote
in the election of Directors at the meeting who complies with the notice
procedures set forth in this paragraph. Such nominations, other than those made
by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the corporation in accordance with
the provisions of paragraph (b) of this Section 3.2. Such stockholder's notice
shall set forth (i) as to each person, if any, whom the stockholder proposes to
nominate for election or re-election as a Director: (A) the name, age, business
address and residence address of such person; (B) the principal occupation or
employment of such person; (C) the class and number of shares of the corporation
which are beneficially owned by such person; (D) a description of all
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nominations are to be made by the stockholder; and (E) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of Directors, or is otherwise required in each case
pursuant to Regulation 14A under the 1934 Act (including without limitation such
person's written consent to being named in the proxy statement, if any, as a
nominee and to serving as a Director if elected); and (ii) as to such
stockholder giving notice, the information required to be provided pursuant to
paragraph (b) of this Section 3.2. At the request of the Board of Directors,
any person nominated by a stockholder for election as a Director shall furnish
to the Secretary of the corporation that information required to be set forth in
the stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a Director of the corporation unless nominated
in accordance with the procedures set forth in this paragraph. The chairman of
the meeting shall, if the facts warrant, determine and declare at the meeting
that a nomination was not made in accordance with the procedures prescribed by
these Bylaws, and if the chairman should so determine, the chairman shall so
declare at the meeting, and the defective nomination shall be disregarded.
3
Section 3.3 SPECIAL MEETINGS.
(a) Special meetings of the stockholders of the corporation
may only be called, for any purpose or purposes, by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of
authorized Directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the
Board of Directors for adoption).
(b) No business may be transacted at such special meeting
otherwise than specified in the resolution calling for the meeting. The
Board of Directors shall determine the time and place of such special
meeting, which shall be held not less than thirty-five (35) nor more than one
hundred twenty (120) days after the date of the receipt of the request other
than any actions effected prior to an Initial Public Offering (as defined
below). Upon determination of the time and place of the meeting, notice
shall be given to the stockholders entitled to vote, in accordance with the
provisions of Section 3.4 of these Bylaws. If the notice is not given within
sixty (60) days after the receipt of the request, the person or persons
requesting the meeting may set the time and place of the meeting and give the
notice. Nothing contained in this paragraph (b) shall be construed as
limiting, fixing or affecting the time when a meeting of stockholders may be
held.
Section 3.4 NOTICE OF MEETINGS. Except as otherwise provided by law
or the certificate of incorporation of the corporation, as the same may be
amended or restated from time to time and including any certificates of
designation thereunder (hereinafter, the "Certificate of Incorporation"), and
for actions effected prior to an Initial Public Offering (for which no notice
need be given) written notice of each meeting of stockholders shall be given
not less than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder entitled to vote at such meeting, such notice to
specify the place, date, time and purpose or purposes of the meeting. Notice
of any meeting of stockholders may be waived in writing, signed by the person
entitled to notice thereof, either before or after such meeting, and will be
waived by any stockholder by his attendance thereat in person or by proxy,
except when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Any
stockholder so waiving notice of such meeting shall be bound by the
proceedings of any such meeting in all respects as if due notice thereof had
been given.
Section 3.5 QUORUM. At all meetings of stockholders, except where
otherwise provided by statute or by the Certificate of Incorporation, or by
these Bylaws, the presence, in person or by duly authorized proxy, of the
holders of a majority of the outstanding shares of stock entitled to vote
shall constitute a quorum for the transaction of business. In the absence of
a quorum, any meeting of stockholders may be adjourned, from time to time,
either by the chairman of the meeting or by vote of the holders of a majority
of the shares represented thereat, but no other business shall be transacted
at such meeting. The stockholders present at a duly called or convened
meeting, at which a quorum is present, may continue to transact business
until adjournment, notwithstanding the withdrawal of enough stockholders to
leave less than a quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, all actions taken by the
holders of a majority of the votes cast, excluding abstentions, at any
meeting at which a quorum is present shall be valid and binding upon the
corporation; provided,
4
however, that Directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy at the meeting and entitled
to vote on the election of Directors. Where a separate vote by a class or
classes is required, a majority of the outstanding shares of such class or
classes, present in person or represented by proxy, shall constitute a quorum
entitled to take action with respect to that vote on that matter and the
affirmative vote of the majority (plurality, in the case of the election of
Directors) of shares of such class or classes present in person or
represented by proxy at the meeting shall be the act of such class.
Section 3.6 ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any
meeting of stockholders, whether annual or special, may be adjourned from
time to time either by the chairman of the meeting or by the vote of a
majority of the shares casting votes, excluding abstentions. When a meeting
is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place thereof are announced at the meeting
at which the adjournment is taken. At the adjourned meeting, the corporation
may transact any business which might have been transacted at the original
meeting. If the adjournment is for more than thirty (30) 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 3.7 VOTING RIGHTS. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the
stock records of the corporation on the record date, as provided in Section
7.5 of these Bylaws, shall be entitled to vote at any meeting of
stockholders. Every person entitled to vote or execute consents shall have
the right to do so either in person or by an agent or agents authorized by a
written proxy executed by such person or his duly authorized agent, which
proxy shall be filed with the Secretary at or before the meeting at which it
is to be used. An agent so appointed need not be a stockholder. No proxy
shall be voted after three (3) years from its date of creation unless the
proxy provides for a longer period. Elections of Directors need not be by
written ballot, unless otherwise provided in the Certificate of Incorporation.
Section 3.8 JOINT OWNERS OF STOCK. If shares or other securities
having voting power stand of record in the names of two (2) or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in
common, tenants by the entirety, or otherwise, or if two (2) or more persons
have the same fiduciary relationship respecting the same shares, unless the
Secretary is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect: (a) if only one (1) votes, his act binds all; (b) if more
than one (1) votes, the act of the majority so voting binds all; or (c) if
more than one (1) votes, but the vote is evenly split on any particular
matter, each faction may vote the securities in question proportionally, or
may apply to the Delaware Court of Chancery for relief as provided in the
Delaware General Corporation Law, Section 217(b). If the instrument filed
with the Secretary shows that any such tenancy is held in unequal interests,
a majority or even-split for the purpose of clause (c) shall be a majority or
even-split in interest.
Section 3.9 LIST OF STOCKHOLDERS. The Secretary shall prepare and
make, at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to
5
vote at said meeting, arranged in alphabetical order, 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 (10) 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 specified, at the place
where the meeting is to be held. The list shall be produced and kept at the
time and place of meeting during the whole time thereof and may be inspected
by any stockholder who is present.
Section 3.10 NO ACTION WITHOUT MEETING. Effective upon the closing
of the corporation's initial public offering of its capital stock pursuant to
an effective registration statement filed under the Securities Act of 1933,
as amended (the "Initial Public Offering"), the stockholders of the
corporation may not take action by written consent without a meeting and must
take any actions at a duly called annual or special meeting.
Section 3.11 ORGANIZATION.
(a) At every meeting of stockholders, unless another officer
of the corporation has been appointed by the Board of Directors, the Chairman
of the Board of Directors, or, if a Chairman has not been appointed, is
absent, or designates the next senior officer present to so act, the
President, or, if the President is absent, the most senior Vice President
present, or, in the absence of any such officer, a chairman of the meeting
chosen by a majority in interest of the stockholders entitled to vote,
present in person or by proxy, shall act as chairman. The Secretary, or, in
his absence, an Assistant Secretary directed to do so by the President, shall
act as secretary of the meeting.
(b) The Board of Directors of the corporation shall be
entitled to make such rules or regulations for the conduct of meetings of
stockholders as it shall deem necessary, appropriate or convenient. Subject
to such rules and regulations of the Board of Directors, if any, the chairman
of the meeting shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of
such chairman, are necessary, appropriate or convenient for the proper
conduct of the meeting, including, without limitation, establishing an agenda
or order of business for the meeting, rules and procedures for maintaining
order at the meeting and the safety of those present, limitations on
participation in such meeting to stockholders of record of the corporation
and their duly authorized and constituted proxies and such other persons as
the chairman shall permit, restrictions on entry to the meeting after the
time fixed for the commencement thereof, limitations on the time allotted to
questions or comments by participants and regulation of the opening and
closing of the polls for balloting on matters which are to be voted on by
ballot. Unless and to the extent determined by the Board of Directors or the
chairman of the meeting, meetings of stockholders shall not be required to be
held in accordance with rules of parliamentary procedure.
6
ARTICLE IV.
DIRECTORS
Section 4.1 NUMBER AND TERM OF OFFICE; CLASSIFICATION.
(a) The number of directors which shall constitute the whole
Board of Directors shall be determined from time to time by the Board of
Directors (provided that no decrease in the number of directors which would
have the effect of shortening the term of an incumbent director may be made
by the Board of Directors), provided that the number of directors shall be
not less than one (1). At each annual meeting of stockholders, Directors of
the corporation shall be elected to hold office until the expiration of the
term for which they are elected, and until their successors have been duly
elected and qualified or until such Director's earlier death, resignation or
due removal; except that if any such election shall not be so held, such
election shall take place at a stockholders' meeting called and held in
accordance with the Delaware General Corporation Law. Directors need not be
stockholders unless so required by the Certificate of Incorporation. If, for
any reason, the Directors shall not have been elected at an annual meeting,
they may be elected as soon thereafter as convenient at a special meeting of
the stockholders called for that purpose in the manner provided in these
Bylaws.
(b) At the first annual meeting of stockholders following the
closing of the Initial Public Offering (the "First Public Company Annual
Meeting"), the Directors of the corporation shall be divided into three
classes as nearly equal in size as is practicable, hereby designated Class I,
Class II and Class III. The initial Class I, Class II and Class III
directors shall be those directors designated and elected at the First Public
Company Annual Meeting. The term of office of the initial Class I directors
shall expire at the next succeeding annual meeting of stockholders, the term
of office of the initial Class II directors shall expire at the second
succeeding annual meeting of stockholders, and the term of office of the
initial Class III directors shall expire at the third succeeding annual
meeting of stockholders. At each annual meeting of stockholders following
the First Public Company Annual Meeting, Directors to replace those of the
Class whose terms expire at such annual meeting shall be elected to hold
office until the third succeeding annual meeting and until their respective
successors shall have been duly elected and qualified. If the number of
directors is hereafter changed, any newly created directorships or decrease
in directorships shall be so apportioned among the classes as to make all
classes as nearly equal in number as is practicable.
Section 4.2 POWERS. The powers of the corporation shall be
exercised, its business conducted and its property controlled by the Board of
Directors, except as may be otherwise provided by statute or by the
Certificate of Incorporation.
Section 4.3 VACANCIES. Vacancies occurring on the Board of
Directors may be filled by vote of a majority of the remaining members of the
Board of Directors, although less than a quorum. Each Director so elected
shall hold office for the unexpired portion of the term of the Director or
newly created directorship whose place shall be vacant and until his or her
successor shall have been duly elected and qualified or until such Director's
earlier death, resignation or due removal. A vacancy in the Board of
Directors shall be deemed to exist under this Section 4.3 in the case of (i)
the death, removal or resignation of any Director; (ii) an
7
increase in the authorized number of Directors pursuant to Section 4.1(a)
above; or (iii) if the stockholders fail at any meeting of stockholders at
which Directors are to be elected (including any meeting referred to in
Section 4.6 below) to elect the number of Directors then constituting the
whole Board of Directors.
Section 4.4 RESIGNATION. Any Director may resign at any time by
delivering his or her written resignation to the Secretary, such resignation
to specify whether it will be effective at a particular time, upon receipt by
the Secretary or at the pleasure of the Board of Directors. If no such
specification is made, it shall be deemed effective at the pleasure of the
Board of Directors. When one or more Directors shall resign from the Board
of Directors, effective at a future date, a majority of the Directors then in
office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation
or resignations shall become effective, and each Director so chosen shall
hold office for the unexpired portion of the term of the Director whose place
shall be vacated and until his successor shall have been duly elected and
qualified.
Section 4.5 REMOVAL. At a special meeting of stockholders called
for such purpose and in the manner provided herein, subject to any
limitations imposed by law or the Certificate of Incorporation, the Board of
Directors, or any individual Director, may only be removed from office for
cause, and a new Director or Directors shall be elected by a vote of
stockholders holding a majority of the outstanding shares entitled to vote at
an election of Directors.
Section 4.6 MEETINGS.
(a) ANNUAL MEETINGS. Unless the Board shall determine
otherwise, the annual meeting of the Board of Directors shall be held
immediately before or after the annual meeting of stockholders and at the
place where such meeting is held. No notice of an annual meeting of the
Board of Directors shall be necessary and such meeting shall be held for the
purpose of electing officers and transacting such other business as may
lawfully come before it.
(b) REGULAR MEETINGS. Except as hereinafter otherwise
provided, regular meetings of the Board of Directors shall be held in the
principal executive offices of the corporation. Unless otherwise restricted
by the Certificate of Incorporation, regular meetings of the Board of
Directors may also be held at any place within or without the State of
Delaware which has been designated by resolution of the Board of Directors or
the written consent of all directors.
(c) SPECIAL MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation, and subject to the notice requirements
contained herein, special meetings of the Board of Directors may be held at
any time and place within or without the State of Delaware whenever called by
the Chairman of the Board, the President or any two of the Directors.
(d) TELEPHONE MEETINGS. Any member of the Board of Directors,
or of any committee thereof, may participate in a meeting by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear
8
each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(e) NOTICE OF MEETINGS. Written notice of the time and place
of all special meetings of the Board of Directors shall be given at least one
(1) day before the date of the meeting. Such notice need not state the
purpose or purposes of such meeting, except as may otherwise be required by
law or provided for in the Certificate of Incorporation or these Bylaws.
Notice of any meeting may be waived in writing at any time before or after
the meeting and will be deemed waived by any Director by attendance thereat,
except when the Director attends the meeting solely for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
(f) WAIVER OF NOTICE. The transaction of all business at any
meeting of the Board of Directors, or any committee thereof, however called
or noticed, or wherever held, shall be as valid as though had at a meeting
duly held after regular call and notice, if a quorum be present and if,
either before or after meeting, each of the Directors not present shall sign
a written waiver of notice, or a consent to holding such meeting, or an
approval of the minutes thereof. All such waivers, consents or approvals
shall be filed with the corporate records or made a part of the minutes of
the meeting.
Section 4.7 QUORUM AND VOTING.
(a) Unless the Certificate of Incorporation requires a greater
number and except with respect to indemnification questions arising under
Article XI hereof, for which a quorum shall be one-third of the exact number
of Directors fixed from time to time in accordance with Section 4.1 hereof,
but not less than one (1), a quorum of the Board of Directors shall consist
of a majority of the exact number of directors fixed from time to time in
accordance with Section 4.1 of these Bylaws, but not less than one (1);
provided, however, at any meeting whether a quorum be present or otherwise, a
majority of the Directors present may adjourn from time to time until the
time fixed for the next regular meeting of the Board of Directors, without
notice other than by announcement at the meeting.
(b) At each meeting of the Board of Directors at which a
quorum is present, all questions and business shall be determined by a vote
of the majority of the Directors present, unless a different vote is required
by law, the Certificate of Incorporation or these Bylaws.
Section 4.8 ACTION WITHOUT MEETING. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board
of Directors or committee, as the case may be, consent thereto in writing,
and such writing or writings are filed with the minutes of proceedings of the
Board of Directors or committee.
Section 4.9 FEES AND COMPENSATION. Directors shall be entitled to
such compensation for their services as may be approved by the Board of
Directors, including, if so approved, by resolution of the Board of
Directors, a fixed sum and expenses of attendance, if any, for attendance at
each regular or special meeting of the Board of Directors and at any
9
meeting of a committee of the Board of Directors. Nothing herein contained
shall be construed to preclude any Director from serving the corporation in
any other capacity as an officer, agent, employee, or otherwise and receiving
compensation therefor.
Section 4.10 COMMITTEES.
(a) EXECUTIVE COMMITTEE. The Board of Directors may by
resolution passed by a majority of the whole Board of Directors appoint an
Executive Committee to consist of one (1) or more members of the Board of
Directors. The Executive Committee, to the extent permitted by law and
specifically granted by the Board of Directors, shall have, and may exercise
when the Board of Directors is not in session, all powers of the Board of
Directors in the management of the business and affairs of the corporation
except such committee shall not have the power or authority to amend the
Certificate of Incorporation, to adopt an agreement of merger or
consolidation, to recommend to the stockholders the sale, lease or exchange
of all or substantially all of the corporation's property and assets, to
recommend to the stockholders of the corporation a dissolution of the
corporation or a revocation of a dissolution, or to amend these Bylaws.
(b) OTHER COMMITTEES. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, from time to
time appoint such other committees as may be permitted by law. Such other
committees appointed by the Board of Directors shall consist of one (1) or
more members of the Board of Directors and shall have such powers and perform
such duties as may be prescribed by the resolution or resolutions creating
such committees, but in no event shall such committee have the powers denied
to the Executive Committee in these Bylaws.
(c) TERM. Each member of a committee of the Board of
Directors shall serve a term on the committee coexistent with such member's
term on the Board of Directors. The Board of Directors, subject to the
provisions of paragraphs (a) and (b) of this Section 4.10 may at any time
increase or decrease the number of members of a committee or terminate the
existence of a committee. The membership of a committee member shall
terminate on the date of his or her death or voluntary resignation from the
committee or from the Board of Directors. The Board of Directors may at any
time for any reason remove any individual committee member and the Board of
Directors may fill any committee vacancy created by death, resignation,
removal or increase in the number of members of the committee. The Board of
Directors may designate one or more Directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting
of the committee, and, in addition, in the absence or disqualification of any
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.
(d) MEETINGS. Unless the Board of Directors shall otherwise
provide, regular meetings of the Executive Committee or any other committee
appointed pursuant to this Section 4.10 shall be held at such times and
places as are determined by the Board of Directors, or by any such committee,
and when notice thereof has been given to each member of such committee, no
further notice of such regular meetings need be given thereafter. Special
meetings
10
of any such committee may be held at any place which has been determined from
time to time by such committee, and may be called by any Director who is a
member of such committee, upon written notice to the members of such
committee of the time and place of such special meeting given in the manner
provided for the giving of written notice to members of the Board of
Directors of the time and place of special meetings of the Board of
Directors. Notice of any special meeting of any committee may be waived in
writing at any time before or after the meeting and will be waived by any
Director by attendance thereat, except when the Director attends such special
meeting solely for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened. A majority of the authorized number of members
of any such committee shall constitute a quorum for the transaction of
business, and the act of a majority of those present at any meeting at which
a quorum is present shall be the act of such committee.
(e) ORGANIZATION. The Chairman of the Board shall preside at
every meeting of the Board of Directors, if present. In the case of any
meeting, if there is no Chairman of the Board or if the Chairman is not
present, the Vice Chairman (if there be one) shall preside, or if there be no
Vice Chairman or if the Vice Chairman is not present, a chairman chosen by a
majority of the Directors present shall act as chairman of such meeting. The
Secretary of the corporation or, in the absence of the Secretary, any person
appointed by the Chairman shall act as secretary of the meeting.
ARTICLE V.
OFFICERS
Section 5.1 OFFICERS DESIGNATED. The officers of the corporation
shall include a President and a Secretary, and, if and when designated by the
Board of Directors, Chairman of the Board of Directors, one or more executive
and non-executive Vice Presidents (any one or more of which executive Vice
Presidents may be designated as Executive Vice President or Senior Vice
President or a similar title), and a Treasurer. The Board of Directors also
may, at its discretion, create additional officers and assign such duties to
those offices as it may deem appropriate from time to time, which offices may
include a Vice Chairman of the Board of Directors, a Chief Executive Officer,
a Chief Operating Officer, a Chief Financial Officer, one or more Assistant
Secretaries and Assistant Treasurers, and one or more other officers which
may be created at the discretion of the Board of Directors. Any one person
may hold any number of offices of the corporation at any one time unless
specifically prohibited therefrom by law. The salaries and other
compensation of the officers of the corporation shall be fixed by or in the
manner designated by the Board of Directors.
Section 5.2 TENURE AND DUTIES OF OFFICERS.
(a) GENERAL. All officers shall hold office at the pleasure
of the Board of Directors and until their successors shall have been duly
elected and qualified, unless sooner removed. Any officer elected or
appointed by the Board of Directors may be removed at any time by the Board
of Directors. If the office of any officer becomes vacant for any reason, the
11
vacancy may be filled by the Board of Directors. Except for the Chairman
of the Board and the Vice Chairman of the Board, no officer need be a
director.
(b) DUTIES OF CHAIRMAN OF THE BOARD OF DIRECTORS. The
Chairman of the Board of Directors, when present, shall preside at all
meetings of the Board of Directors and, unless the Chairman has designated
the next senior officer to so preside, at all meetings of the stockholders.
The Chairman of the Board of Directors shall perform other duties commonly
incident to such office and shall also perform such other duties and have
such other powers as the Board of Directors shall designate from time to time.
(c) POWERS AND DUTIES OF THE VICE CHAIRMAN OF THE BOARD. The
Board of Directors may but is not required to assign areas of responsibility
to a Vice Chairman of the Board, and, in such event, and subject to the
overall direction of the Chairman of the Board and the Board of Directors,
the Vice Chairman of the Board shall be responsible for supervising the
management of the affairs of the corporation and its subsidiaries within the
area or areas assigned and shall monitor and review on behalf of the Board of
Directors all functions within such corresponding area or areas of the
corporation and each such subsidiary of the corporation. In the absence of
the President, or in the event of the President's inability or refusal to
act, the Vice Chairman of the Board shall perform the duties of the
President, and when so acting shall have all the powers of and be subject to
all the restrictions upon the President. Further, the Vice Chairman of the
Board shall have such other powers and duties as designated in accordance
with these Bylaws and as from time to time may be assigned to the Vice
Chairman of the Board by the Board of Directors or the Chairman of the Board.
(d) DUTIES OF PRESIDENT. Unless the Board of Directors
otherwise determines (including by election of Chief Executive Officer) and
subject to the provisions of paragraph (e) below, the President shall be the
chief executive and chief operating officer of the corporation. Unless the
Board of Directors otherwise determines, he shall, in the absence of the
Chairman of the Board or Vice Chairman of the Board or if there be no
Chairman of the Board or Vice Chairman of the Board, preside at all meetings
of the stockholders and (should he be a director) of the Board of Directors.
The President shall have such other powers and duties as designated in
accordance with these Bylaws and as from time to time may be assigned to him
by the Board of Directors.
(e) DUTIES OF THE CHIEF EXECUTIVE AND CHIEF OPERATING
OFFICERS. Subject to the control of the Board of Directors, the chief
executive officer shall have general executive charge, management and
control, of the properties, business and operations of the corporation with
all such powers as may be reasonably incident to such responsibilities and
shall perform the duties of the President at such times as a President is not
in office; and subject to the control of the chief executive officer, the
chief operating officer shall have general operating charge, management and
control, of the properties, business and operations of the corporation with
all such powers as may be reasonably incident to such responsibilities.
(f) DUTIES OF VICE PRESIDENTS. Vice Presidents, by virtue of
their appointment as such, shall not necessarily be deemed to be executive
officers of the corporation, such status as an executive officer only being
conferred if and to the extent such Vice President is placed in charge of a
principal business unit, division or function (E.G., sales, administration or
finance) or
12
performs a policy-making function for the corporation (within the meaning of
Section 16 of the 1934 Act and the rules and regulations promulgated
thereunder). Each executive Vice President shall at all times possess, and
upon the authority of the President or the chief executive officer any
non-executive Vice President shall from time to time possess, power to sign
all certificates, contracts and other instruments of the corporation, except
as otherwise limited pursuant to Article VI hereof or by the Chairman of the
Board, the President, chief executive officer or the Vice Chairman of the
Board. The Vice Presidents shall perform other duties commonly incident to
their office and shall also perform such other duties and have such other
powers as the Board of Directors or the President shall designate from time
to time.
(g) DUTIES OF SECRETARY. The Secretary shall keep the minutes
of all meetings of the Board of Directors, committees of the Board of
Directors and the stockholders, in books provided for that purpose; shall
attend to the giving and serving of all notices; may in the name of the
corporation affix the seal of the corporation to all contracts and attest the
affixation of the seal of the corporation thereto; may sign with the other
appointed officers all certificates for shares of capital stock of the
corporation; and shall have charge of the certificate books, transfer books
and stock ledgers, and such other books and papers as the Board of Directors
may direct, all of which shall at all reasonable times be open to inspection
of any director upon application at the office of the corporation during
business hours. The Secretary shall perform all other duties given in these
Bylaws and other duties commonly incident to such office and shall also
perform such other duties and have such other powers as the Board of
Directors shall designate from time to time. The chief executive officer may
direct any Assistant Secretary to assume and perform the duties of the
Secretary in the absence or disability of the Secretary, and each Assistant
Secretary shall perform other duties commonly incident to such office and
shall also perform such other duties and have such other powers as the Board
of Directors or the chief executive officer, shall designate from time to
time.
(h) ASSISTANT SECRETARIES. Each Assistant Secretary shall
have the usual powers and duties pertaining to such offices, together with
such other powers and duties as designated in these Bylaws and as from time
to time may be assigned to an Assistant Secretary by the Board of Directors,
the Chairman of the Board, the President, the Vice Chairman of the Board, or
the Secretary. The Assistant Secretaries shall exercise the powers of the
Secretary during that officer's absence or inability or refusal to act.
(i) DUTIES OF TREASURER.
(i) The Treasurer shall keep or cause to be kept the books
of account of the corporation in a thorough and proper manner and shall
render statements of the financial affairs of the corporation in such form
and as often as required by the Board of Directors, the Chairman of the
Board, the Vice Chairman of the Board, chief executive officer, if one be
designated, the Chief Financial Officer. The Treasurer, subject to the order
of the Board of Directors, shall have the custody of all funds and securities
of the corporation. The Treasurer shall perform other duties commonly
incident to such office and shall also perform such other duties and have
such other powers as the Board of Directors, the Chairman of the Board, the
Vice Chairman of the Board or the President shall designate from time to time.
13
(ii) In absence of a designated Chief Financial Officer,
unless otherwise determined by the Board of Directors or chief executive
officer, the Treasurer shall serve as the chief financial officer subject to
control of the chief executive officer.
(iii) The Chief Financial Officer, if any be designated,
may, but need not serve as the Treasurer.
(j) ASSISTANT TREASURERS. Each Assistant Treasurer shall have
the usual powers and duties pertaining to such office, together with such
other powers and duties as designated in these Bylaws and as from time to
time may be assigned to each Assistant Treasurer by the Board of Directors,
the Chairman of the Board, the President, the Vice Chairman of the Board, or
the Treasurer. The Assistant Treasurers shall exercise the powers of the
Treasurer during that officer's absence or inability or refusal to act.
Section 5.3 DELEGATION OF AUTHORITY. For any reason that the Board
of Directors may deem sufficient, the Board of Directors may, except where
otherwise provided by statute, delegate the powers or duties of any officer
to any other person, and may authorize any officer to delegate specified
duties of such office to any other person. Any such delegation or
authorization by the Board shall be effected from time to time by resolution
of the Board of Directors.
Section 5.4 RESIGNATIONS. Any officer may resign at any time by
giving written notice to the Board of Directors or to the President or to the
Secretary. Any such resignation shall be effective when received by the
person or persons to whom such notice is given, unless a later time is
specified therein, in which event the resignation shall become effective at
such later time. Unless otherwise specified in such notice, the acceptance
of any such resignation shall not be necessary to make it effective. Any
resignation shall be without prejudice to the rights, if any, of the
corporation under any contract with the resigning officer.
Section 5.5 REMOVAL. Any officer may be removed from office at any
time, either with or without cause, by the vote or written consent of a
majority of the Directors in office at the time, or by any committee or
superior officers upon whom such power of removal may have been conferred by
the Board of Directors.
ARTICLE VI.
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
Section 6.1 EXECUTION OF CORPORATE INSTRUMENTS. The Board of
Directors may, in its discretion, determine the method and designate the
signatory officer or officers, or other person or persons, to execute on
behalf of the corporation any corporate instrument or document, or to sign on
behalf of the corporation the corporate name without limitation, or to enter
into contracts on behalf of the corporation, except where otherwise provided
by law or these Bylaws, and such execution or signature shall be binding upon
the corporation.
14
Unless otherwise specifically determined by the Board of Directors or
otherwise required by law, promissory notes, deeds of trust, mortgages and
other evidences of indebtedness of the corporation, and other corporate
instruments or documents requiring the corporate seal, and certificates of
shares of stock owned by the corporation, shall be executed, signed or
endorsed by the Chairman of the Board of Directors, the President, Chief
Executive Officer or any executive Vice President and if any be designated,
Chief Financial Officer, Treasurer, Assistant Secretary or Assistant
Treasurer, and upon the authority conferred by the Board of Directors,
President or Chief Executive Officer, any non-executive Vice President, and
by the Secretary. All other instruments and documents requiring the
corporate signature, but not requiring the corporate seal, may be executed as
aforesaid or in such other manner as may be directed by the Board of
Directors.
All checks and drafts drawn on banks or other depositaries on funds to
the credit of the corporation or in special accounts of the corporation shall
be signed by such person or persons as the Board of Directors shall authorize
so to do.
Unless authorized or ratified by the Board of Directors or within the
agency power of an officer, no officer, agent or employee shall have any
power or authority to bind the corporation by any contract or engagement or
to pledge its credit or to render it liable for any purpose or for any amount.
Section 6.2 VOTING OF SECURITIES OWNED BY THE CORPORATION. All
stock and other securities of other corporations owned or held by the
corporation for itself, or for other parties in any capacity, shall be voted,
and all proxies with respect thereto shall be executed, by the person
authorized so to do by resolution of the Board of Directors, or, in the
absence of such authorization, by the Chairman or Vice Chairman of the Board
of Directors, Chief Executive Officer, the President, or any executive Vice
President.
ARTICLE VII.
SHARES OF STOCK
Section 7.1 FORM AND EXECUTION OF CERTIFICATES. Certificates for
the shares of stock of the corporation shall be in such form as is consistent
with the Certificate of Incorporation and applicable law. 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 Vice Chairman of the Board
of Directors, the Chief Executive Officer, the President or any executive
Vice President and by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer, certifying the number of shares and the
class or series owned by him in the corporation. Where such certificate is
countersigned by a transfer agent other than the corporation or its employee,
or by a registrar other than the corporation or its employee, any other
signature on the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may
16
be issued with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Section 7.2 LOST CERTIFICATES. A new certificate or certificates
shall 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. The corporation may
require, as a condition precedent to the issuance of a new certificate or
certificates, 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 or to give the corporation a surety bond in such
form and amount 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 7.3 TRANSFERS.
(a) Transfers of record of shares of stock of the corporation
shall be made only on its books by the holders thereof, in person or by
attorney duly authorized and upon the surrender of a properly endorsed
certificate or certificates for a like number of shares. Upon surrender to
the corporation or a transfer agent of the corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the corporation
to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books. The Board of
Directors shall have the power and authority to make all such other rules and
regulations as they may deem expedient concerning the issue, transfer and
registration or the replacement of certificates for shares of capital stock
of the corporation.
(b) The corporation shall have power to enter into and perform
any agreement with any number of stockholders of any one or more classes of
stock of the corporation to restrict the transfer of shares of stock of the
corporation of any one or more classes owned by such stockholders in any
manner not prohibited by the Delaware General Corporation Law.
Section 7.4 FIXING RECORD DATES.
(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 of Directors may fix, in advance, a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty (60) nor less than ten (10)
days before the date of such meeting. If no record date is fixed by the
Board of Directors, 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 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.
16
(b) 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 of Directors
may fix, in advance, 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 sixty (60) days prior to such action. If
no record date is fixed by the Board of Directors, the record date for
determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
Section 7.5 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
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 VIII.
OTHER SECURITIES OF THE CORPORATION
Section 8.1 EXECUTION OF OTHER SECURITIES. All bonds, debentures
and other corporate Securities of the corporation, other than stock
certificates (covered in Section 7.1), may be signed by the Chairman or Vice
Chairman of the Board of Directors, the Chief Executive Officer, the
President or any executive Vice President, or such other person as may be
authorized by the Board of Directors, and the corporate seal impressed
thereon or a facsimile of such seal imprinted thereon and attested by the
signature of the Secretary or an Assistant Secretary, or the Treasurer or an
Assistant Treasurer; provided, however, that where any such bond, debenture
or other corporate security shall be authenticated by the manual signature of
a trustee under an indenture pursuant to which such bond, debenture or other
corporate security shall be issued, the signatures of the persons signing and
attesting the corporate seal on such bond, debenture or other corporate
security may be the imprinted facsimile of the signatures of such persons.
Interest coupons appertaining to any such bond, debenture or other corporate
security, authenticated by a trustee as aforesaid, shall be signed by the
Treasurer or an Assistant Treasurer of the corporation or such other person
as may be authorized by the Board of Directors, or bear imprinted thereon the
facsimile signature of such person. In case any officer who shall have
signed or attested any bond, debenture or other corporate security, or whose
facsimile signature shall appear thereon or on any such interest coupon,
shall have ceased to be such officer before any bond, debenture or other
corporate security so signed or attested shall have been delivered, such
bond, debenture or other corporate security nevertheless may be adopted by
the corporation and issued and delivered as though the person who signed the
same or whose facsimile signature shall have been used thereon had not ceased
to be such officer of the corporation.
17
ARTICLE IX.
DIVIDENDS
Section 9.1 DECLARATION OF DIVIDENDS. Dividends upon the capital
stock of the corporation, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors pursuant to
law at any regular or special meeting. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation.
Section 9.2 DIVIDEND RESERVE. Before payment of any dividend, there
may be set aside out of any funds of the corporation available for dividends
such sum or sums as the Board of Directors from time to time, in their
absolute discretion, think 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 of
Directors shall think conducive to the interests of the corporation, and the
Board of Directors may modify or abolish any such reserve in the manner in
which it was created.
ARTICLE X.
FISCAL YEAR
The fiscal year of the corporation shall end on the closest Saturday
to December 31st, unless otherwise fixed by resolution of the Board of
Directors.
ARTICLE XI.
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS
Section 11.1 DIRECTORS AND EXECUTIVE OFFICERS. The corporation shall
indemnify its Directors and executive officers to the fullest extent not
prohibited by the Delaware General Corporation Law; PROVIDED, HOWEVER, that
the corporation may limit the extent of such indemnification by individual
contracts with its Directors and executive officers; and, PROVIDED, FURTHER,
that the corporation shall not be required to indemnify any Director or
executive officer in connection with any proceeding (or part thereof)
initiated by such person or any proceeding by such person against the
corporation or its Directors, officers, employees or other agents unless (i)
such indemnification is expressly required to be made by law, (ii) the
proceeding was authorized by the Board of Directors of the corporation, or
(iii) such indemnification is provided by the corporation, in its sole
discretion, pursuant to the powers vested in the corporation under the
Delaware General Corporation Law.
18
Section 11.2 OTHER OFFICERS, EMPLOYEES AND OTHER AGENTS. The
corporation shall have power to indemnify its other officers, employees and
other agents as set forth in the Delaware General Corporation Law.
Section 11.3 GOOD FAITH.
(a) For purposes of any determination under this Article XI, a
Director or executive officer shall be deemed to have acted in good faith and in
a manner such officer reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe that such officer's
conduct was unlawful, if such officer's action is based on information,
opinions, reports and statements, including financial statements and other
financial data, in each case prepared or presented by:
(i) one or more officers or employees of the corporation whom
the Director or executive officer believed to be reliable
and competent in the matters presented;
(ii) counsel, independent accountants or other persons as to
matters which the Director or executive officer believed to
be within such person's professional competence; and
(iii) with respect to a Director, a committee of the Board upon
which such Director does not serve, as to matters within
such committee's designated authority, which committee the
Director believes to merit confidence; so long as, in each
case, the Director or executive officer acts without
knowledge that would cause such reliance to be unwarranted.
(b) The termination of any 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 such person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal
proceeding, that such person had reasonable cause to believe that his conduct
was unlawful.
(c) The provisions of this Section 11.3 shall not be deemed to
be exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth by the Delaware
General Corporation Law.
Section 11.4 EXPENSES. The corporation shall advance, prior to the
final disposition of any proceeding, promptly following request therefor, all
expenses incurred by any Director or executive officer in connection with such
proceeding upon receipt of an undertaking by or on behalf of such person to
repay said amounts if it should be determined ultimately that such person is not
entitled to be indemnified under this Article XI or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to
Section 11.5 of this Article XI, no advance shall be made by the corporation if
a determination is reasonably and
19
promptly made (i) by the Board of Directors by a majority vote of a quorum
consisting of Directors who were not parties to the proceeding, or (ii) if
such quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, that the facts known to the decision-making party at the time such
determination is made demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be in
or not opposed to the best interests of the corporation.
Section 11.5 ENFORCEMENT. Without the necessity of entering into an
express contract, all rights to indemnification and advances to Directors and
executive officers under this Article XI shall be deemed to be contractual
rights and be effective to the same extent and as if provided for in a contract
between the corporation and the Director or executive officer. Any right to
indemnification or advances granted by this Article XI to a Director or
executive officer shall be enforceable by or on behalf of the person holding
such right in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within ninety (90) days of request therefor.
The claimant in such enforcement action, if successful in whole or in part, also
shall be entitled to be paid the expense of prosecuting his claim. The
corporation shall be entitled to raise as a defense to any such action that the
claimant has not met the standards of conduct that make it permissible under the
Delaware General Corporation Law for the corporation to indemnify the claimant
for the amount claimed. 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 action that indemnification of
the claimant is proper in the circumstances because such person has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant has not met the applicable standard of
conduct.
Section 11.6 NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this Article XI shall not be exclusive of any other right which such
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, Bylaws, 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 office. The corporation is
specifically authorized to enter into individual contracts with any or all of
its Directors, officers, employees or agents respecting indemnification and
advances, to the fullest extent not prohibited by the Delaware General
Corporation Law.
Section 11.7 SURVIVAL OF RIGHTS. The rights conferred on any person by
this Article XI shall continue as to a person who has ceased to be a Director,
officer, employee or other agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 11.8 INSURANCE. To the fullest extent permitted by the Delaware
General Corporation Law, the corporation, upon approval by the Board of
Directors, may purchase insurance on behalf of any person required or permitted
to be indemnified pursuant to this Article XI.
20
Section 11.9 AMENDMENTS. Any repeal or modification of this Article XI
shall only be prospective and shall not affect the rights under this Article XI
in effect at the time of the alleged occurrence of any action or omission to act
that is the cause of any proceeding against any agent of the corporation.
Section 11.10 SAVINGS CLAUSE. If this Article XI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the corporation shall nevertheless indemnify each Director and executive officer
to the full extent not prohibited by any applicable portion of this Article XI
that shall not have been invalidated, or by any other applicable law.
Section 11.11 CERTAIN DEFINITIONS. For the purposes of this Article XI,
the following definitions shall apply:
(a) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution,
defense, settlement, arbitration and appeal of, and the giving of testimony in,
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative.
(b) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness fees, fines,
amounts paid in settlement or judgment and any other costs and expenses of any
nature or kind incurred in connection with any proceeding.
(c) The term the "corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article XI with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(d) References to a "director," "officer," "employee," or
"agent" of the corporation shall include without limitation, situations where
such person is serving at the request of the corporation as a director, officer,
employee, trustee or agent of another corporation, partnership, joint venture,
trust or other enterprise.
(e) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; and references to "serving at
the request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee, or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an
21
employee benefit plan shall be deemed to have acted in a manner "not opposed
to the best interests of the corporation" as referred to in this Article XI.
ARTICLE XII.
NOTICES
Section 12.1 NOTICE TO STOCKHOLDERS. Unless the Certificate of
Incorporation requires otherwise, whenever, under any provisions of these
Bylaws, notice is required to be given to any stockholder, it shall be given in
writing, timely and duly deposited in the United States mail, postage prepaid,
and addressed to such stockholder's last known post office address as shown by
the stock record of the corporation or its transfer agent.
Section 12.2 NOTICE TO DIRECTORS. Any notice required to be given to
any Director may be given by the method stated in Section 12.1, or by facsimile,
telex or telegram, except that such notice other than one which is delivered
personally shall be sent to such address as such Director shall have filed in
writing with the Secretary, or, in the absence of such filing, to the last known
post office address of such Director. It shall not be necessary that the same
method of giving notice be employed in respect of all Directors, but one
permissible method may be employed in respect of any one or more, and any other
permissible method or methods may be employed in respect of any other or others.
Section 12.3 ADDRESS UNKNOWN. If no address of a stockholder or
Director be known, notice may be sent to the principal executive officer of the
corporation.
Section 12.4 AFFIDAVIT OF MAILING. An affidavit of mailing, executed by
a duly authorized and competent employee of the corporation or its transfer
agent appointed with respect to the class of stock affected, specifying the name
and address or the names and addresses of the stockholder or stockholders, or
Director or Directors, to whom any such notice or notices was or were given, and
the time and method of giving the same, shall be conclusive evidence of the
statements therein contained.
Section 12.5 TIME NOTICES DEEMED GIVEN. All notices given by mail, as
above provided, shall be deemed to have been given as at the time of mailing,
and all notices given by facsimile, telex or telegram shall be deemed to have
been given as of the sending time recorded at the time of transmission.
Section 12.6 FAILURE TO RECEIVE NOTICE. The period or limitation of
time within which any stockholder may exercise any option or right, or enjoy any
privilege or benefit, or be required to act, or within which any Director may
exercise any power or right, or enjoy any privilege, pursuant to any notice sent
such person in the manner above provided, shall not be affected or extended in
any manner by the failure of such stockholder or such Director to receive such
notice.
Section 12.7 NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL.
Whenever notice is required to be given, under any provision of law or of the
Certificate of
22
Incorporation or Bylaws of the corporation, to any person with whom
communication is unlawful, the giving of such notice to such person shall not
be required and there shall be no duty to apply to any governmental authority
or agency for a license or permit to give such notice to such person. Any
action or meeting which shall be taken or held without notice to any such
person with whom communication is unlawful shall have the same force and
effect as if such notice had been duly given. In the event that the action
taken by the corporation is such as to require the filing of a certificate
under any provision of the Delaware General Corporation Law, the certificate
shall state, if such is the fact and if notice is required, that notice was
given to all persons entitled to receive notice except such persons with whom
communication is unlawful.
Section 12.8 NOTICE TO PERSON WITH UNDELIVERABLE ADDRESS. Whenever
notice is required to be given, under any provision of law or the Certificate of
Incorporation or Bylaws of the corporation, to any stockholder to whom
(i) notice of two consecutive annual meetings, and all notices of meetings to
such person during the period between such two consecutive annual meetings, or
(ii) all, and at least two, payments (if sent by first class mail) of dividends
or interest on securities during a twelve-month period, have been mailed
addressed to such person at such person's address as shown on the records of the
corporation and have been returned undeliverable, the giving of such notice to
such person shall not be required. Any action or meeting which shall be taken
or held without notice to such person shall have the same force and effect as if
such notice had been duly given. If any such person shall deliver to the
corporation a written notice setting forth such person's then current address,
the requirement that notice be given to such person shall be reinstated. In the
event that the action taken by the corporation is such as to require the filing
of a certificate under any provision of the Delaware General Corporation Law,
the certificate need not state that notice was not given to persons to whom
notice was not required to be given pursuant to this paragraph.
ARTICLE XIII.
AMENDMENTS
Section 13.1 AMENDMENTS. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed,
or new Bylaws may be adopted, by the holders of a majority of the outstanding
voting shares or by the Board of Directors, when such power is conferred upon
the Board of Directors by the 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 Bylaws be contained in the
notice of such special meeting. If the power to adopt, amend or repeal Bylaws
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 Bylaws.
Section 13.2 APPLICATION OF BYLAWS. In the event that any provisions of
these Bylaws is or may be in conflict with any law of the United States, of the
state of incorporation of the corporation or of any other governmental body or
power having jurisdiction over this corporation, or over the subject matter to
which such provision of these Bylaws applies, or may apply, such provision of
these Bylaws shall be inoperative to the extent only that the operation
23
thereof unavoidably conflicts with such law, and shall in all other respects
be in full force and effect.
ARTICLE XIV.
LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiaries, including any officer or employee who is a Director of the
corporation or its subsidiaries, whenever, in the judgment of the Board of
Directors, such loan, guarantee or assistance may reasonably be expected to
benefit the corporation. The loan, guarantee or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing in this Bylaw shall be deemed to deny, limit
or restrict the powers of guaranty or warranty of the corporation at common law
or under statute.
24