Exhibit 3.3
LANDMARK MERGER COMPANY
BYLAWS
LANDMARK MERGER COMPANY
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BYLAWS
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ARTICLE 1
NAME
The name of the corporation is "Landmark Merger Company."
ARTICLE 2
OFFICES
SECTION 2.1 REGISTERED OFFICE. The corporation shall at all times
maintain a registered office in the State of Delaware, which, except as
otherwise determined by the Board of Directors of the corporation (the "Board"),
shall be in the City of Dover, County of Kent.
SECTION 2.2 PRINCIPAL OFFICE. The principal office of the corporation
shall be maintained at such place within or without the State of Delaware as the
Board shall designate.
SECTION 2.3 OTHER OFFICES. The corporation may also have offices at
such other places within or without the State of Delaware as the Board shall
from time to time designate or the business of the corporation shall require.
ARTICLE 3
MEETINGS OF STOCKHOLDERS
SECTION 3.1 PLACE OF MEETINGS . All annual and special meetings of
stockholders shall be held at such places within or without the State of
Delaware as the Board may determine.
SECTION 3.2 ANNUAL MEETINGS.
3.2.1 TIME AND PLACE. The regular annual meeting of
stockholders for the election of directors and for the transaction of any other
business of the corporation shall be held each year at 2:00 p.m., Manhattan,
Kansas, time, on the third Monday of May, if not a legal holiday, or, if a legal
holiday, then on the next succeeding day not a Saturday, Sunday or legal
holiday, or at such other time, date or place as the Board may determine.
3.2.2 NEW BUSINESS. At the annual meetings, directors shall be
elected and any other business properly proposed and filed with the Secretary of
the corporation as provided in these Bylaws may be transacted which is within
the powers of the stockholders.
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Any new business to be conducted at the annual meeting of the
stockholders shall be stated in writing and filed with the Secretary of the
corporation on or before sixty (60) days in advance of the first anniversary
date (month and day) of the previous year's annual meeting, and all business so
stated, proposed and filed shall, unless prior action thereon is required by the
Board, be considered at the annual meeting. Any stockholder may make any other
proposal at the annual meeting and the same may be discussed and considered, but
unless stated in writing and filed with the Secretary of the corporation on or
before sixty (60) days in advance of the first anniversary date (month or day)
of the previous year's annual meeting, such proposal may only be voted upon at a
meeting held at least thirty (30) days after the annual meeting at which it is
presented. No other proposal made by stockholders may be acted upon at the
annual meeting. This provision shall not prevent the consideration, approval or
disapproval at the annual meeting of the reports of officers and committees, but
in connection with such reports, no business shall be acted upon at such annual
meeting unless stated and filed as herein provided.
SECTION 3.3 NOTICE. Written notice stating the place, day and hour of
the meeting and the purpose or purposes for which the meeting of the
stockholders is called shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting, either personally or by mail, to each
stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be given when deposited in the U.S. mail, postage prepaid,
and addressed to the stockholder at his or her address as it appears on the
records of the corporation as of the record date prescribed in SECTION 3.9.1 and
SECTION 11.1.1 of these Bylaws.
SECTION 3.4 NOMINATIONS FOR DIRECTOR. Nominations of candidates for
election as directors at any meeting of stockholders may be made: (a) by, or at
the direction of, a majority of the Board; or (b) by any stockholder of record
entitled to vote at such meeting; provided that only persons nominated in
accordance with procedures set forth in this SECTION 3.4 shall be eligible for
election as directors.
Nominations, other than those made by, or at the direction of, the
Board, may only be made pursuant to timely notice in writing to the Secretary of
the corporation as set forth in this SECTION 3.4. To be timely, a stockholder's
notice shall be delivered to, or mailed and received by the Secretary of the
corporation, for an annual meeting, not less than sixty (60) days nor more than
ninety (90) days in advance of the first anniversary date (month and day) of the
previous year's annual meeting, and for a special meeting, not less than sixty
(60) days nor more than ninety (90) days in advance of the date (month and day)
of the special meeting, regardless of any postponements or adjournments of that
meeting to a later date. Such stockholder notice shall set forth: (a) as to each
person whom the stockholder proposes to nominate for election as a director: (i)
the name, age, business address and residential address of such person; (ii) the
principal occupation or employment of such person; (iii) the class and number of
shares of the corporation's stock which are beneficially owned by such person on
the date of such stockholder notice; and (iv) any other information relating to
such person that would be required to be disclosed on Schedule 13D pursuant to
Regulation 13D-G under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), in connection with the
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acquisition of stock, and pursuant to Regulation 14A under the Exchange Act, in
connection with the solicitation of proxies with respect to nominees for
election as directors, regardless of whether such person is subject to the
provisions of such regulations, including, but not limited to, information
required to be disclosed by Item 4(b) and Item 6 of Schedule 14A of Regulation
14A with the Securities and Exchange Commission; and (b) as to the stockholder
giving the notice: (i) the name and address, as they appear on the corporation's
books, of such stockholder and the name and principal business or residential
address of any other beneficial stockholders known by such stockholder to
support such nominees; and (ii) the class and number of shares of the
corporation's stock which are beneficially owned by such stockholder on the date
of such stockholder notice and the number of shares owned beneficially by any
other record or beneficial stockholders known by such stockholder to be
supporting such nominees on the date of such stockholder notice. At the request
of the Board, any person nominated by, or at the request of, the Board for
election as a director shall furnish to the Secretary of the corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee.
The Board may reject any nomination by a stockholder not timely made in
accordance with the requirements of this SECTION 3.4. If the Board, or a
committee designated by the Board, determines that the information provided in a
stockholder's notice does not satisfy the informational requirements of this
SECTION 3.4 in any material respect, the Secretary of the corporation shall
promptly notify such stockholder of the deficiency in the notice. The
stockholder may cure the deficiency by providing additional information to the
Secretary within such period of time, not less than five days from the date such
deficiency notice is given to the stockholder, as the Board or such committee
shall determine. If the deficiency is not cured within such period, or if the
Board or such committee determines that the additional information provided by
the stockholder, together with information previously provided, does not satisfy
the requirements of this SECTION 3.4 in any material respect, then the Board may
reject such stockholder's notice and the proposed nominations shall not be
accepted if presented at the stockholder meeting to which the notice relates.
The Secretary of the corporation shall notify a stockholder in writing whether
his or her nomination has been made in accordance with the time and
informational requirements of this SECTION 3.4. Notwithstanding the procedure
set forth in this SECTION 3.4, if neither the Board nor such committee makes a
determination as to the validity of any nominations by a stockholder, the
presiding officer of the stockholder's meeting shall determine and declare at
the meeting whether a nomination was not made in accordance with the terms of
this SECTION 3.4. If the presiding officer determines that a nomination was not
made in accordance with the terms of this SECTION 3.4, he or she shall so
declare at the meeting and the defective nomination shall not be accepted.
SECTION 3.5 SPECIAL MEETINGS. Special meetings of stockholders for the
purpose of taking any action permitted the stockholders by law and the
Certificate of Incorporation of this corporation may be called at any time by a
majority of the directors then in office. Except in special cases where other
express provision is made by statute, notice of such special meetings shall be
given in the same manner as for annual meetings of stockholders.
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SECTION 3.6 VOTING LISTS. The officer having charge of the stock
transfer books for shares of the capital stock of the corporation shall make, at
least ten (10) days before each meeting of the stockholders, a complete list of
the stockholders entitled to vote at such meeting, with the address of and the
number of shares registered in the name of, each stockholder. Such list shall be
subject to inspection by any stockholder, for any purpose germane to the
meeting, at any time during the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified in the notice of the meeting, at the place
where the meeting is to be held. Such list shall also be produced and kept open
at the time and place of the meeting and shall be subject to the inspection of
any stockholder during the whole time of the meeting. The original stock
transfer books shall be prima facie evidence as to who are the stockholders
entitled to examine such list or transfer books or to vote at any meeting of
stockholders.
SECTION 3.7 QUORUM. A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum for the transaction
of business at a meeting of the stockholders. The stockholders present at a duly
called or held 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, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
SECTION 3.8 ADJOURNED MEETING AND NOTICE THEREOF. Any stockholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by the vote of a majority of the shares present, whether in
person or represented by proxy, but in the absence of a quorum no other business
may be transacted at such meeting, except for such adjournment. When any
stockholders' meeting, either annual or special, is adjourned for more than
thirty (30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. Except as provided above,
it shall not be necessary to give any notice of the adjourned meeting if the
time and place thereof are announced at the meeting at which such adjournment is
taken.
SECTION 3.9 VOTING.
3.9.1 RECORD DATE. Unless a record date for voting purposes is
fixed as provided in SECTION 11.1.1 of these Bylaws then, subject to the
provisions of Section 217 of the General Corporation Law of the State of
Delaware (the "Delaware General Corporation Law") (relating to voting of shares
held by fiduciaries, pledgors and joint owners), only persons in whose names
shares entitled to vote stand on the stock records of the corporation at the
close of business on the business day next preceding the day on which notice of
the meeting is given or, if such notice is waived, at the close of business on
the business day next preceding the day on which the meeting of stockholders is
held, shall be entitled to vote at such meeting, and such day shall be the
record date for such meeting.
3.9.2 METHOD; VOTE REQUIRED. Unless otherwise required by law,
voting may be oral or by written ballot; PROVIDED, HOWEVER, that all elections
for directors must be by
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ballot if demanded by a stockholder before such voting begins. Except as
provided in SECTION 3.7, the affirmative vote of the majority of the shares
represented and voting at a duly held meeting at which a quorum is present
(which shares voting affirmatively also constitute at least a majority of the
required quorum) shall be the act of the stockholders, unless the vote of a
greater number or voting by classes is required by the Delaware General
Corporation Law or the Certificate of Incorporation or these Bylaws. There
shall be no cumulative voting in the election of directors.
3.9.3 VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in
the name of another corporation may be voted by any officer, agent or proxy as
the bylaws of such corporation may prescribe, or, in the absence of such
provision, as the board of directors of such corporation may determine. Shares
held by an administrator, executor, guardian or conservator may be voted by him
or her, either in person or by proxy, without a transfer of such shares into his
or her name. Shares standing in the name of a trustee may be voted by the
trustee, either in person or by proxy, but no trustee shall be entitled to vote
shares held by him or her without a transfer of such shares into the trustee's
name.
Neither treasury shares of its own stock held by the
corporation, nor shares held by another corporation, if a majority of the shares
entitled to vote for the election of directors of such other corporation are
held directly or indirectly by the corporation, shall be voted at any meeting or
counted in determining the total number of outstanding shares at any given time
for purposes of any meeting.
SECTION 3.10 CONDUCT OF MEETING. The presiding officer at any meeting
of stockholders, either annual or special, shall be the Chairman of the Board
or, in his or her absence, the President or, in the absence of both the Chairman
of the Board and the President, anyone selected by a majority of the Board. The
secretary at such meetings shall be the Secretary of the corporation or, in his
or her absence, anyone appointed by the presiding officer. The presiding officer
of any meeting of the stockholders, unless prescribed by law or regulation or
unless the Board has otherwise determined, shall determine the order of the
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussions as shall be deemed appropriate
by him or her in his or her sole discretion.
SECTION 3.11 PROXIES. At all meetings of the stockholders, every
stockholder having the right to vote shall be entitled to vote in person or by
proxy appointed by an instrument in writing and complying with the requirements
of the Delaware General Corporation Law. No proxy shall be valid after the
expiration of three (3) years from the date thereof unless otherwise provided in
the proxy. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only so long as, it is coupled with an interest in the
stock of the corporation or in the corporation generally which is sufficient in
law to support an irrevocable power.
SECTION 3.12 INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the Board may appoint any persons other than nominees for office
as inspectors of election to act
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at such meeting or any adjournment thereof. If inspectors of election are not so
appointed, or if any persons so appointed fail to appear or refuse to act, the
presiding officer of any such meeting may, and on the request of any stockholder
or a stockholder's proxy shall, make such appointment at the meeting. The number
of inspectors shall be either one (1) or three (3). If appointed at a meeting on
the request of one or more stockholders or proxies, the majority of shares
represented in person or by proxy shall determine whether one (1) or three (3)
inspectors are to be appointed. The duties of such inspectors shall include: (a)
determining the number of shares of stock and the voting power of each share,
the shares of stock represented at the meeting, the existence of a quorum, and
the authenticity, validity and effect of the proxies; (b) receiving votes,
ballots or consents; (c) hearing and determining all challenges and questions in
any way arising in connection with the right to vote; (d) counting and
tabulating all votes or consents; (e) determining the result; and (f) such acts
as may be proper to conduct the election or vote with fairness to all
stockholders.
ARTICLE 4
DIRECTORS
SECTION 4.1 POWERS. Subject to any limitations imposed by law, the
Certificate of Incorporation and these Bylaws as to actions which shall be
authorized or approved by the stockholders, and subject to the duties of
directors as prescribed thereby, the business and affairs of the corporation
shall be managed and all corporate powers shall be exercised by or under the
direction of the Board.
SECTION 4.2 CLASSIFICATION, NUMBER AND QUALIFICATIONS. Subject to the
provisions of the Certificate of Incorporation of the corporation, the exact
number of directors shall be fixed from time to time by the Board pursuant to a
resolution adopted by the affirmative vote of not less than two-thirds (2/3) of
the number of directors that immediately prior to such change had been fixed, in
the manner prescribed herein, by the Board.
SECTION 4.3 ELECTION AND VACANCIES. Directors shall be elected at the
annual meeting of the stockholders of the corporation and shall hold office
until their successors are elected and qualified or until their earlier death,
resignation or removal. Any director may resign at any time upon written notice
to the corporation. Thereafter, directors who are elected at an annual meeting
of stockholders, and directors who are elected in the interim to fill vacancies
and newly created directorships, shall hold office until the next annual meeting
of stockholders at which directors are to be elected and until their successors
are elected and qualified or until their earlier death, resignation or removal.
In the interim between annual meetings of stockholders or of special meetings of
stockholders called for the election of directors and/or for the removal of one
or more directors and for the filling of any vacancy in that connection, newly
created directorships and any vacancies on the Board, including vacancies
resulting from the removal of directors, may be filled by the vote of a majority
of the remaining directors then in office, although less than a quorum, or by
the sole remaining director.
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SECTION 4.4 REGULAR MEETINGS. The Board shall meet regularly at the
time and place designated in a resolution of the Board or by written consent of
all members of the Board, whether within or without the State of Delaware, and
no notice of such regular meetings need be given to the directors.
SECTION 4.5 ORGANIZATION MEETING. Following each annual meeting of
stockholders, the Board shall hold a regular meeting at the place of said annual
meeting or at such other place as shall be fixed by the Board, for the purpose
of organization, election of officers and the transaction of other business. No
call and notice of such meetings shall be required.
SECTION 4.6 SPECIAL MEETINGS. Special meetings of the Board may be
called by the Chairman of the Board, the President, the Secretary, or a majority
of directors then in office. Notice of each such meeting shall be given to each
director by the Secretary or by the person or persons calling the meeting. Such
notice shall specify the time and place of the meeting, which may be within or
without the State of Delaware, and the general nature of the business to be
transacted, and no other business may be transacted at the meeting. Such notice
shall be deposited in the mail, postage prepaid, at least four (4) days prior to
the meeting, directed to the address of the director on the records of the
corporation, or delivered in person or by telephone or telegram, telecopy or
other means of electronic transmission to the director at least forty-eight (48)
hours before the meeting. Notice of a meeting need not be given to any director
who signs a waiver of notice or a consent to holding the meeting, or an approval
of the minutes thereof, whether before or after such meeting, or who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such director. All such waivers, consents and approvals shall be filed
with the corporate records or made a part of the minutes of the meeting.
SECTION 4.7 QUORUM; MAJORITY ACTION. A majority of the authorized
number of directors shall constitute a quorum for the transaction of business at
any meeting of the Board, but if less than such majority is present at a
meeting, a majority of the directors present may adjourn the meeting from time
to time. Notice of any adjourned meeting shall be given in the same manner as
prescribed in SECTION 4.6 of these Bylaws. Every act or decision of a majority
of the directors present at a meeting at which a quorum is present, made or done
at a meeting duly held, shall be valid as the act of the Board, unless a greater
number is required by law or the Certificate of Incorporation or these Bylaws.
SECTION 4.8 ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the Board may be taken without a meeting if all members of the Board
shall individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the minutes of the proceedings
of the Board and shall have the same force and effect as a unanimous vote of the
Board.
SECTION 4.9 TELEPHONIC MEETINGS. Members of the Board may participate
in any regular or special meeting, including meetings of committees of the
Board, through use of conference telephone or similar communications equipment,
so long as all members
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participating in such meeting can hear one another. Participation in a meeting
pursuant to this section constitutes presence in person at such meeting.
SECTION 4.10 FEES AND COMPENSATION. Fees and compensation of directors
and members of committees for their services, and reimbursement for expenses,
shall be fixed or determined by a resolution of the Board. Nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity as an officer, employee, agent or otherwise,
and receiving compensation therefor.
SECTION 4.11 CAUSE FOR REMOVAL. A director may be removed only for
cause as determined by the affirmative vote of the holders of at least a
majority of the shares then entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at an annual meeting
of stockholders or at a special meeting of the stockholders called expressly for
that purpose. Cause for removal shall be deemed to exist only if the director
whose removal is proposed has been convicted of a felony by a court of competent
jurisdiction or has been adjudged by a court of competent jurisdiction to be
liable for gross negligence or willful misconduct in the performance of such
director's duty to the corporation and such adjudication is no longer subject to
direct appeal.
SECTION 4.12 DIRECTORS EMERITUS/ADVISORY DIRECTORS. The Board may by
resolution appoint directors emeritus or advisory directors who shall have such
authority and receive such compensation and reimbursement as the Board shall
provide. Directors emeritus or advisory directors shall not have the authority
to participate by vote in the transaction of business.
ARTICLE 5
OFFICERS
SECTION 5.1 OFFICERS. The officers of the corporation shall be the
Chairman of the Board, the President, the Secretary, the Chief Financial Officer
and any other individual performing functions similar to those performed by the
foregoing persons, including any officer designated by the Board as performing
such functions.
SECTION 5.2 ELECTION. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of SECTION 5.3 or
SECTION 5.5 of this ARTICLE 5 shall be chosen annually by the Board. Each
officer shall hold his or her office until he or she shall resign or shall be
removed or otherwise disqualified to serve, or his or her successor shall be
elected and qualified, and shall perform such duties as are prescribed in the
Bylaws or as the Board may from time to time determine.
SECTION 5.3 OTHER OFFICERS. The corporation may have, at the discretion
of the Board, one or more Senior Vice Presidents, Vice Presidents and Assistant
Vice Presidents, one or more Assistant Secretaries, one or more Assistant
Financial Officers and such other officers as may be appointed by the Board, or
by a committee of the Board to which the authority to appoint subordinate
officers has been delegated, each of whom shall hold office for such
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period, have such authority and perform such duties as the Board or such
committee may from time to time determine. Any person may hold more than one
office.
SECTION 5.4 REMOVAL AND RESIGNATION. Any officer may be removed, either
with or without cause, by the Board, at any regular or special meeting thereof,
or by any officer upon whom such power of removal may be conferred by the Board
(without prejudice, however, to the rights, if any, of an officer under any
contract of employment with the corporation).
Any officer may resign at any time by giving written notice to the
Board or to the President or to the Secretary of the corporation, without
prejudice, however, to the rights, if any, of the corporation under any contract
to which such officer is a party. Any such resignation shall take effect at the
date of the receipt or at any later time specified therein.
SECTION 5.5 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled by the
Board for the unexpired portion of the term.
SECTION 5.6 COMPENSATION. The Board shall fix the compensation of the
officers of the corporation or compensation shall be fixed by an officer of the
corporation to whom the authority to fix compensation has been delegated by the
Board.
SECTION 5.7 CHAIRMAN OF THE BOARD. The Chairman of the Board shall, if
present, preside at all meetings of the Board and exercise and perform such
other powers and duties as may be from time to time assigned to him or her by
the Board or prescribed by these Bylaws.
SECTION 5.8 PRESIDENT. The President shall be the chief executive
officer and chief operating officer of the corporation and shall, subject to the
control of the Board, have general supervision, direction and control of the
business and affairs of the corporation. The President shall also have such
other general powers and duties of management as are usually vested in the
office of the president of a corporation and all other powers and duties as the
Board shall from time to time prescribe. Except as otherwise provided by the
Board, the President shall have the authority to vote all shares of stock of any
other corporation standing in the name of the corporation, at any meeting of the
stockholders of such other corporation, or by written consent of the
stockholders of such other corporation, and may, on behalf of the corporation,
waive any notice of the calling of any such meeting, and may give a written
proxy in the name of the corporation to vote any or all shares of stock of such
other corporation owned by the corporation at any such meeting.
SECTION 5.9 SECRETARY. The Secretary shall keep, or cause to be kept,
minutes of all meetings of the stockholders and Board in a book to be provided
for that purpose, and shall attend to the giving and serving of all notices of
meetings of stockholders and directors, and any other notices required by law to
be given. The Secretary shall be custodian of the corporate seal, if any, and
shall affix the seal to all documents and papers requiring such seal. The
Secretary shall have such other powers and duties as the Board from time to time
shall prescribe.
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SECTION 5.10 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the corporation, shall
receive and keep all the funds of the corporation and shall pay out corporate
funds on the check of the corporation, signed in such manner as shall be
authorized by the Board. The Chief Financial Officer shall have such other
powers and duties as the Board from time to time shall prescribe.
ARTICLE 6
COMMITTEES
SECTION 6.1 EXECUTIVE COMMITTEE. The Board may, but shall not be
required to, by a resolution adopted by a majority of the authorized number of
directors, designate an executive committee consisting of two or more directors,
one of which shall be the Chairman of the Board or the President, to serve at
the pleasure of the Board. If an executive committee is designated, it shall
have, to the extent provided in the resolution of the Board or in these Bylaws,
all the authority of the Board, except with respect to:
(a) amending the Certificate of Incorporation (except that a
committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board as provided
in Section 151(a) of the Delaware General Corporation Law, fix the designations
and any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the corporation or the
conversion into, or the exchange of such shares for, shares of any other class
or classes or any other series of the same or any other class or classes of
stock of the corporation or fix the number of shares of any series of stock or
authorize the increase or decrease of the shares of any series);
(b) adopting an agreement of merger or consolidation under
Sections 251 or 252 of the Delaware General Corporation Law;
(c) recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets;
(d) recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution;
(e) amending the Bylaws of the corporation; and
(f) unless the resolution establishing the executive
committee, or the corporation's Bylaws or Certificate of Incorporation expressly
so provide, no such committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock or to adopt a certificate of
ownership and merger pursuant to Section 253 of the Delaware General Corporation
Law.
The Board may by resolution fix the regular meeting date of the
executive committee, and notice of any such regular meeting date shall be
dispensed with. Special meetings of the
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executive committee may be held at the principal office of the corporation, or
at any place which has been designated from time to time by resolution of the
executive committee or by written consent of all members thereof and may be
called by the President, any Vice President or other officer who is a member of
the executive committee or any two members thereof, upon written notice to the
members of the executive 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 the time and place of special meetings of the Board. Vacancies in the
membership of the executive committee may be filled by the Board. A majority of
the authorized number of members of the executive committee shall constitute a
quorum for the transaction of business; and transactions of any meeting of the
executive committee, however called and noticed, or wherever held, shall be as
valid as though at a meeting duly held after regular call and notice, if a
quorum is present and if, either before or after the meeting, each of the
members not present signs 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 corporation's records or made a part of the
minutes of the meeting.
Any action required or permitted to be taken by the executive committee
may be taken without a meeting, if all members of the executive committee shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
executive committee. Such action by written consent shall have the same force
and effect as a unanimous vote of such members of the executive committee. Any
certificate or other document filed under any provision of the Delaware General
Corporation Law which relates to action so taken shall state that the action was
taken by unanimous written consent of the executive committee without meeting,
and that these Bylaws authorize the members of the executive committee to so
act.
SECTION 6.2 AUDIT COMMITTEE. The Board shall by a resolution adopted by
a majority of the authorized number of directors designate an audit committee
consisting of a majority of members who are not also officers or employees of
the corporation or any subsidiary to serve at the pleasure of the Board. The
audit committee shall have, to the extent provided in the resolution of the
Board or in these Bylaws, the authority to retain the independent auditor for
the corporation, and to conduct discussions with such auditor concerning the
financial statements, operations, internal controls and other related matters
and such other authority as may be provided to the audit committee by the Board.
The Board may, by resolution, fix the regular meeting date of the audit
committee, and notice of any such regular meeting date shall be dispensed with.
Special meetings of the audit committee may be held at the principal office of
the corporation, or at any place which has been designated from time to time by
resolution of the audit committee or by written consent of all members thereof
and may be called by the chairman of the audit committee, or any members
thereof, upon written notice to the members of the audit 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 the time and place of special meetings
of the Board. Vacancies in the membership of the audit committee may be filled
by the Board. A majority of the authorized number of members of the audit
committee shall constitute a quorum for the transaction of
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business; and transactions of any meeting of the audit committee, however called
and noticed, or wherever held, shall be as valid as though at a meeting duly
held after regular call and notice, if a quorum is present and if, either before
or after the meeting, each of the members not present signs 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
corporation's records or made a part of the minutes of the meeting.
Any action required or permitted to be taken by the audit committee may
be taken without a meeting, if all members of the audit committee shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
audit committee. Such action by written consent shall have the same force and
effect as a unanimous vote of such members of the audit committee. Any
certificate or other document filed under any provision of the Delaware General
Corporation Law which relates to action so taken shall state that the action was
taken by unanimous written consent of the audit committee without meeting, and
that these Bylaws authorize the members of the audit committee to so act.
SECTION 6.3 COMPENSATION COMMITTEE. The Board may, by a resolution
adopted by a majority of the authorized number of directors, but shall not be
required to, designate a compensation committee consisting of three or more
directors to serve at the pleasure of the Board. If an compensation committee is
designated, it shall have, to the extent provided in the resolution of the Board
or in these Bylaws, the authority to establish the compensation, benefits and
prerequisites for the executive officers, directors and other employees of the
corporation and such other authority as may be provided to the compensation
committee by the Board.
The Board may, by resolution, fix the regular meeting date of the
compensation committee, and notice of any such regular meeting date shall be
dispensed with. Special meetings of the compensation committee may be held at
the principal office of the corporation, or at any place which has been
designated from time to time by resolution of the compensation committee or by
written consent of all members thereof and may be called by the chairman of the
compensation committee, or any two members thereof, upon written notice to the
members of the compensation 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 the time and place of special meetings of the Board. Vacancies
in the membership of the compensation committee may be filled by the Board. A
majority of the authorized number of members of the compensation committee shall
constitute a quorum for the transaction of business; and transactions of any
meeting of the compensation committee, however called and noticed, or wherever
held, shall be as valid as though at a meeting duly held after regular call and
notice, if a quorum is present and if, either before or after the meeting, each
of the members not present signs 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 corporation's records or made a
part of the minutes of the meeting.
Any action required or permitted to be taken by the compensation
committee may be taken without a meeting, if all members of the compensation
committee shall individually or
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collectively consent in writing to such action. Such written consent or consents
shall be filed with the minutes of the proceedings of the compensation
committee. Such action by written consent shall have the same force and effect
as a unanimous vote of such members of the compensation committee. Any
certificate or other document filed under any provision of the Delaware General
Corporation Law which relates to action so taken shall state that the action was
taken by unanimous written consent of the compensation committee without
meeting, and that these Bylaws authorize the members of the compensation
committee to so act.
SECTION 6.4 OTHER COMMITTEES. The Board may, but shall not be required
to, designate any other committee consisting of two or more directors, to serve
at the pleasure of the Board. Any such committee shall possess such powers of
the Board as the Board shall by its resolution provide, except that it shall not
in any event have authority with respect to any of the transactions which are
prohibited to the executive committee by SECTION 6.1 of this ARTICLE 6.
Unless the Board shall otherwise prescribe the manner of proceedings of
any other committee, meetings of such committee may be regularly scheduled in
advance and may be called at any time by the Chairman of the Board, or the
President, or any two members of the committee; otherwise, the provisions of
these Bylaws with respect to notice and conduct of meetings of the Board shall
govern.
ARTICLE 7
INDEMNIFICATION
SECTION 7.1 INDEMNIFICATION.
7.1.1 ACTIONS, SUITS OR PROCEEDINGS OTHER THAN BY OR IN THE
RIGHT OF THE CORPORATION. The corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he 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, partnership,
joint venture, trust or other enterprise, or by reason of any action alleged to
have been taken or omitted in such capacity, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her or on his or her behalf in connection with
such action, suit or proceeding and any appeal therefrom, if he or she acted in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of NOLO CONTENDERE or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation and, with respect
to any criminal action or proceeding, had reasonable cause to believe that his
or her conduct was unlawful.
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7.1.2 ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION.
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation or is or was serving or has agreed to serve at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her or on his or her behalf in connection with the defense or settlement of such
action or suit and any appeal therefrom, if he or she acted in good faith and in
a manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
7.1.3 INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF
SUCCESSFUL PARTY. Notwithstanding the other provisions of this SECTION 7.1, to
the extent that a director, officer, employee or agent has been successful, on
the merits or otherwise, including, without limitation, to the extent permitted
by applicable law, the dismissal of an action without prejudice, in defense of
any action, suit or proceeding referred to in SECTIONS 7.1.1 and 7.1.2, or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
7.1.4 DETERMINATION OF RIGHT TO INDEMNIFICATION. Any
indemnification under SECTIONS 7.1.1 and 7.1.2, (unless ordered by a court)
shall be paid by the corporation, if a determination is made (a) by the board of
directors by a majority vote of the directors who were not parties to such
action, suit or proceeding, or (b) if such majority of disinterested directors
so directs, by independent legal counsel in a written opinion, or (c) by the
stockholders, that indemnification of the director or officer is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in SECTIONS 7.1.1 and 7.1.2.
7.1.5 ADVANCE OF COSTS, CHARGES AND EXPENSES. Expenses
(including attorneys' fees) incurred by a person referred to in SECTIONS 7.1.1
and 7.1.2 in defending a civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the corporation in advance of the
final disposition of such action, suit or proceeding; PROVIDED, HOWEVER, that
the payment of such costs, charges and expenses incurred by a director or
officer 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 person while a director or
officer) in advance of the final disposition of such action, suit or proceeding
shall be made only upon receipt of an
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undertaking by or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the corporation as authorized in
this ARTICLE 7. Such costs, charges and expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the majority of
the directors deems appropriate. The majority of the directors may, in the
manner set forth above, and upon approval of such director or officer of the
corporation, authorize the corporation's counsel to represent such person, in
any action, suit or proceeding, whether or not the corporation is a party to
such action, suit or proceeding.
7.1.6 PROCEDURE FOR INDEMNIFICATION. Any indemnification under
SECTIONS 7.1.1, 7.1.2 and 7.1.3, or advance of costs, charges and expenses under
SECTION 7.1.5, shall be made promptly, and in any event within 60 days, upon the
written request of the director, officer, employee or agent. The right to
indemnification or advances as granted by this ARTICLE 7 shall be enforceable by
the director, officer, employee or agent in any court of competent jurisdiction,
if the corporation denies such request, in whole or in part, or if no
disposition thereof is made within sixty (60) days. Such person's costs and
expenses incurred in connection with successfully establishing his or her right
to indemnification, in whole or in part, in any such action shall also be
indemnified by the corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for the advance of costs, charges and
expenses under SECTION 7.1.5, where the required undertaking, if any, has been
received by the corporation) that the claimant has not met the standard of
conduct set forth in SECTIONS 7.1.1 and 7.1.2, but the burden of proving such
defense shall be on the corporation. Neither the failure of the corporation
(including its board of directors, its independent legal counsel and 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 he or she has met the applicable standard of conduct set forth in
SECTIONS 7.1.1 and 7.1.2, nor the fact that there has been an actual
determination by the corporation (including its board of directors, its
independent legal counsel and 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 the claimant has not met the applicable standard of conduct.
7.1.7 SETTLEMENT. The corporation shall not be obligated to
reimburse the costs of any settlement to which it has not agreed. If in any
action, suit or proceeding, including any appeal, within the scope of SECTIONS
7.1.1 and 7.1.2, the person to be indemnified shall have unreasonably failed to
enter into a settlement thereof offered or assented to by the opposing party or
parties in such action, suit or proceeding, then, notwithstanding any other
provision hereof, the indemnification obligation of the corporation to such
person in connection with such action, suit or proceeding shall not exceed the
total of the amount at which settlement could have been made and the expenses
incurred by such person prior to the time such settlement could reasonably have
been effected.
SECTION 7.2 SUBSEQUENT AMENDMENT. No amendment, termination or repeal
of this ARTICLE 7 or of relevant provisions of the Delaware General Corporation
Law or any other applicable law shall affect or diminish in any way the rights
of any director or officer of the corporation to indemnification under the
provisions hereof with respect to any action, suit or
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proceeding arising out of, or relating to, any actions, transactions or facts
occurring prior to the final adoption of such amendment, termination or repeal.
SECTION 7.3 OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION. The
indemnification provided by this ARTICLE 7 shall not be deemed exclusive of any
other rights to which a director, officer, employee or agent seeking
indemnification may be entitled under any law (common or statutory), agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his or her official capacity and as to action in any other capacity while
holding office or while employed by or acting as agent for the corporation, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent, and shall inure to the benefit of the estate, heirs, executors and
administrators of such person. Nothing contained in this ARTICLE 7 shall be
deemed to prohibit, and the corporation is specifically authorized to enter
into, agreements with officers and directors providing indemnification rights
and procedures different from those set forth herein. All rights to
indemnification under this ARTICLE 7 shall be deemed to be a contract between
the corporation and each director or officer of the corporation who serves or
served in such capacity at any time while this ARTICLE 7 is in effect. The
corporation shall not consent to any acquisition, merger, consolidation or other
similar transaction unless the successor corporation assumes by operation of law
or by agreement the obligations set forth in this ARTICLE 7.
SECTION 7.4 INSURANCE. The corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability
under this ARTICLE 7.
SECTION 7.5 CERTAIN DEFINITIONS. For purposes of this ARTICLE 7:
(a) references to "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 the power and authority to
indemnify its directors, officers, 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 enterprises, shall stand in the same position
under this ARTICLE 7 with respect to the resulting or surviving corporation as
he or she would have with respect to such constituent corporation if its
separate existence had continued;
(b) references to "other enterprises" shall include employee
benefit plans;
(c) references to "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan;
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(d) 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
(e) a person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and beneficiaries
of an 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 7.
SECTION 7.6 SAVINGS CLAUSE. If this ARTICLE 7 or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the corporation shall nevertheless indemnify each director or officer of the
corporation as to any costs, charges, expenses (including attorney's fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the corporation, to the full extent
permitted by any applicable portion of this ARTICLE 7 that shall not have been
invalidated and to the full extant permitted by applicable law.
SECTION 7.7 SUBSEQUENT LEGISLATION. If the Delaware General Corporation
Law is amended after the date hereof to further expand the indemnification
permitted to directors and officers of the corporation, then the corporation
shall indemnify such person to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
ARTICLE 8
RECORDS AND REPORTS
SECTION 8.1 RECORDS. The corporation shall maintain adequate and
correct books and records of account of its business and properties.
SECTION 8.2 CHECKS AND DRAFTS. All checks, drafts and other orders for
payment of money, notes or other evidences of indebtedness, issued in the name
of or payable to the corporation, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the Board.
SECTION 8.3 EXECUTION OF INSTRUMENTS. The Board may authorize any
officer or officers or agent or agents to enter into any contract or execute any
instrument in the name of and on behalf of the corporation. Such authority may
be general or confined to specific instances. Unless so authorized by the Board,
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 8.4 FISCAL YEAR. The fiscal year of the corporation shall be a
December 31 fiscal year.
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SECTION 8.5 ANNUAL AUDIT. The corporation shall be subject to an annual
audit as of the end of its fiscal year by independent accountants appointed by,
and responsible to, the Board and to any audit committee of the Board, as
provided in these Bylaws. The appointment of such accountants shall be subject
to annual ratification by the stockholders.
ARTICLE 9
DIVIDENDS ON STOCK
Subject to applicable law, the Certificate of Incorporation and these
Bylaws, the Board may, from time to time, declare, and the corporation may pay,
dividends on the outstanding shares of capital stock of the corporation.
ARTICLE 10
CERTIFICATES
SECTION 10.1 ISSUANCE. The corporation, as authorized by the Board, may
issue any and all forms of certificates of stock not inconsistent with law.
SECTION 10.2 CERTIFICATES FOR SHARES. Every holder of shares of the
stock of the corporation or shares of any other class or series of stock that
may be validly authorized and issued by the corporation shall be entitled to
have a certificate signed in the name of the corporation by the President, a
Vice President or any Vice President and by the Secretary or an Assistant
Secretary, certifying the number of shares and the class or series of shares
owned by the stockholder. Any of the signatures 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 be issued by the corporation with the same effect as if such
person were an officer, transfer agent or registrar at the date of issue.
SECTION 10.3 STATEMENTS ON CERTIFICATES. Any certificates for shares of
stock shall contain such legend or other statement as may be required by law or
applicable rule or regulation, by these Bylaws or by any agreements between the
corporation and the issue thereof.
SECTION 10.4 LOST OR DESTROYED CERTIFICATES. In case any certificate
for stock or other security issued by this corporation is lost or destroyed, the
Board may authorize the issuance of a new certificate or instrument therefor, on
such terms and conditions as it may determine, after proof of such loss or
destruction satisfactory to the Board. The Board may require a bond or other
security in an adequate amount as indemnity for any such certificate or
instrument when, in the Board's judgment, it is proper to do so.
SECTION 10.5 TRANSFER. Stock of the corporation shall be transferable
on the books of the corporation by the person named in the certificate, or by
the person entitled thereto, on surrender of the certificate for cancellation,
accompanied by proper evidence of succession, assignment or authority to
transfer. The corporation shall be entitled to treat the holder of
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record of any stock certificate as owner thereof, and, accordingly, shall not be
bound to recognize any equitable or other claim to, or interest in, such stock
on the part of any other person, whether or not it shall have express or other
notice thereof, save as expressly provided by the laws of the State of Delaware.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 RECORD DATE.
11.1.1 STOCKHOLDERS' MEETINGS. So that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or adjournment thereof, the Board may fix, in advance, a record
date, which shall not be more than sixty (60) nor less than ten (10) days before
the date of such meeting. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; PROVIDED, HOWEVER, that the Board may fix a new record date for
the adjourned meeting.
11.1.2 OTHER ACTIONS. So 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, the Board
may fix, in advance, a record date, which shall not be more than sixty (60) days
prior to such action.
11.1.3 SUBSEQUENT TRANSFERS AND CLOSING TRANSFER BOOKS. When a
record date is fixed, only stockholders of record at the close of business on
that date are entitled to notice and to vote or to receive the dividend,
distribution or allotment of rights or to exercise the rights, as the case may
be, notwithstanding any transfer of any shares on the books of the corporation
after the record date, except as otherwise provided in the Certificate of
Incorporation or by agreement or in the Delaware General Corporation Law. The
Board may close the books of the corporation against transfers of shares during
the whole, or any part, of any such period.
SECTION 11.2 INSPECTION OF CORPORATE RECORDS.
11.2.1 BY STOCKHOLDERS. Any stockholder, in person or by
attorney or other agent, shall, upon written demand under oath stating the
purpose thereof, have the right during the usual hours of business to inspect
for any proper purpose the corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably related to such
person's interest as a stockholder. In every instance where an attorney or other
agent shall be the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on behalf of the stockholder.
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11.2.2 BY DIRECTORS. Each director shall have the right at any
reasonable time to inspect all books, records, documents of every kind, and the
physical properties of the corporation. The inspection may be made in person or
by agent or attorney, and the right of inspection includes the right to make
extracts and copies thereof.
SECTION 11.3 CORPORATE SEAL. The corporate seal of the corporation, if
any, shall be in such form as the Board shall prescribe.
ARTICLE 12
AMENDMENT OF BYLAWS
These Bylaws may be amended, altered or repealed by the stockholders of
the corporation, PROVIDED, HOWEVER, that such amendment, alteration or repeal is
approved by the affirmative vote of the holders of not less than two-thirds
(2/3) of the outstanding shares of stock of the corporation then entitled to
vote generally in the election of directors. The bylaws may also be amended,
altered or repealed by a majority of the directors then in office.
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