EXHIBIT 3
BY-LAWS
OF
MARSH & McLENNAN COMPANIES, INC.
RESTATED AS LAST AMENDED
July 20, 1994
I N D E X
Page Number
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ARTICLE I
Offices............................................. 1
ARTICLE II
Meetings of the Stockholders........................ 1
ARTICLE III
Directors........................................... 5
ARTICLE IV
Officers............................................ 6
ARTICLE V
Committees.......................................... 8
ARTICLE VI
Indemnification..................................... 11
ARTICLE VII
Checks, Contracts, Other Instruments................ 13
ARTICLE VIII
Capital Stock....................................... 14
ARTICLE IX
Miscellaneous....................................... 15
ARTICLE X
Amendments.......................................... 16
BY-LAWS
OF
MARSH & McLENNAN COMPANIES, INC.
ARTICLE I
OFFICES
The principal office of the Corporation in Delaware shall be at
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle, in the State of Delaware, and The Corporation Trust Company shall
be the resident agent of the Corporation in charge thereof. The Corporation may
also have such other offices at such other places as the Board of Directors may
from time to time designate or the business of the Corporation may require.
ARTICLE II
MEETINGS OF THE STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of the stockholders may be
held at such place as the Board of Directors may determine.
SECTION 2. ANNUAL MEETINGS. The annual meeting of the stockholders
shall be held on the third Tuesday of May in each year, or such other day in May
as may be determined from time to time by the Board of Directors, at such time
and place as the Board of Directors may designate. At said meeting the
stockholders shall elect a Board of Directors and transact any other business
authorized or required to be transacted by the stockholders.
SECTION 3. SPECIAL MEETINGS. Special meetings of the stockholders,
except as otherwise provided by law, shall be called by the Chairman of the
Board, or whenever the Board of Directors shall so direct, the Secretary.
SECTION 4. NOTICE OF MEETINGS. Except as otherwise provided by law,
written or printed notice stating the place, day and hour of the meeting, and in
the case of a special meeting the purpose or purposes for which the meeting is
called, shall be delivered personally or mailed, postage prepaid, at least ten
(10) days but not more than sixty (60) days before such meeting to each
stockholder at such address as appears on the stock books of the Corporation.
SECTION 5. FIXING OF RECORD DATE. In order to determine the
stockholders entitled to notice of or to vote at any meeting of the stockholders
or any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date which shall not be more than sixty
(60) nor less than ten (10) days before the date of such meeting, and no more
than sixty (60) days prior to any other action.
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 of the meeting 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, and
such date for any other purpose shall be the date on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 6. QUORUM. The holders of a majority of the stock issued and
outstanding present in person or represented by proxy shall be requisite and
shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by law, by the Restated
Certificate of Incorporation or by these by-laws. If, however, such majority
shall not be present or represented at any meeting of the stockholders, the
stockholders present in person or by proxy shall have power to adjourn the
meeting from time to time without notice other than announcement at the meeting
until the requisite amount of stock shall be represented. At such adjourned
meeting at which the requisite amount of stock shall be represented, any
business may be transacted which might have been transacted at the meeting as
originally called.
SECTION 7. VOTING. Each stockholder entitled to vote in accordance
with the terms of the Restated Certificate of Incorporation and in accordance
with the provisions of these by-laws shall be entitled to one vote, in person or
by proxy, for each share of stock entitled to vote held by such stockholder, but
no proxy shall be voted after three years from its date unless such proxy
provides for a longer period. The vote for directors and, upon demand of any
stockholder, the vote upon any question before the meeting shall be by ballot.
All elections of directors shall be decided by plurality vote; all other
questions shall be decided by a majority of the shares present in person or
represented by proxy at the meeting of stockholders and entitled to vote on the
subject matter, except as otherwise provided in the Restated Certificate of
Incorporation or by law or regulation.
SECTION 8. INSPECTORS OF ELECTION. All elections of directors and
all votes where a ballot is required shall be
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conducted by two inspectors of election who shall be appointed by the Board of
Directors; but in the absence of such appointment by the Board of Directors, the
Chairman of the meeting shall appoint such inspectors who shall not be directors
or candidates for the office of director.
SECTION 9. VOTING LIST. The Secretary shall prepare and make, at
least ten days before every election of directors, a complete list of the
stockholders entitled to vote, arranged in alphabetical order and showing the
address of each stockholder and the number of shares registered in his name.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 10. STOCKHOLDER NOMINATIONS OF DIRECTORS. Only persons who
are nominated in accordance with the following procedures shall be eligible for
election as directors at a meeting of stockholders. 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, by any person
appointed by the Board of Directors or by any stockholder of the Corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Section 10. Such nominations, other
than those made by or at the direction of the Board of Directors or by any
person appointed by the Board of Directors, shall be made pursuant to timely
notice in writing to the Secretary, Marsh & McLennan Companies, Inc. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 60 days nor
more than 90 days prior to the meeting; PROVIDED, HOWEVER, that in the event
that the meeting is not to be held on the date set forth in Article II, Section
2 and less than 75 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 15th day
following the day on which such public disclosure was made. Such stockholder's
notice to the Secretary shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director, (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the
person and (iv) any other information relating to the person that is required to
be disclosed in solicitations for proxies for
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election of directors pursuant to Rule 14a under the Securities Exchange Act of
1934, as amended; and (b) as to the stockholder giving the notice (i) the name
and record address of the stockholder and (ii) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder. The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as a director of the
Corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth herein.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
Section 11. ADVANCE NOTICE OF STOCKHOLDER PROPOSED BUSINESS AT ANNUAL
MEETINGS. 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 specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, otherwise properly brought before the meeting by or at
the direction of the Board of Directors, or otherwise properly brought before
the meeting by a stockholder. In addition to any other applicable requirements,
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, Marsh & McLennan Companies, Inc. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation, not less than 60 days nor more than 90 days prior to
the meeting; PROVIDED, HOWEVER, that in the event that the meeting is not to be
held on the date set forth in Article II, Section 2 and less than 75 days'
notice or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 15th day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
was made. 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) the name
and record address of the stockholder proposing such business, (iii) the class
and number of shares of capital stock of the Corporation which are beneficially
owned by the stockholder and (iv) any material interest of the stockholder in
such business.
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Notwithstanding anything in these by-laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 11; PROVIDED, HOWEVER, that nothing in this
Section 11 shall be deemed to preclude discussion by any stockholder of any
business properly brought before the annual meeting in accordance with said
procedure.
The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section, and if he
should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
ARTICLE III
DIRECTORS
SECTION 1. POWERS, NUMBER, TENURE, QUALIFICATIONS AND COMPENSATION.
The business and affairs of the Corporation shall be managed by its Board of
Directors which shall consist of the number of members set forth in Article
FIFTH of the Restated Certificate of Incorporation, none of whom need be
stockholders, but no person shall be eligible to be nominated or elected a
director of the Corporation who has attained the age of 72 years. In addition
to the powers and duties by these by-laws expressly conferred upon them, the
Board of Directors may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the Restated Certificate
of Incorporation or by these by-laws directed or required to be exercised or
done by the stockholders. The Board of Directors may provide for compensation
of directors who are not otherwise compensated by the Corporation or any
subsidiary thereof.
SECTION 2. MEETINGS AND NOTICE. The Board shall, for the purposes of
organization, the election and appointment of officers and the transaction of
other business, hold a meeting as soon as convenient after the annual meeting of
stockholders. Regular meetings of the directors may be held without notice at
such places and times as shall be determined from time to time by resolution of
the directors. Special meetings of the Board may be called by the Chairman of
the Board on at least twenty-four (24) hours' notice to each director,
personally or by mail or by telegram or by telephone. Special meetings shall
also be called in like manner on the written request of any three (3) directors.
The attendance of a director at any meeting shall dispense with notice to him of
the meeting. Members of the Board of Directors may participate in a meeting of
the Board by means of conference telephone or similar communications equipment,
by means of which
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all persons participating in the meeting can hear each other, and participation
in a meeting pursuant to this section shall constitute presence in person at
such meeting.
SECTION 3. OFFICES, BOOKS, PLACE OF MEETING. The Board of Directors
may have one or more offices and keep the books of the Corporation outside of
Delaware, and may hold its meetings at such places as it may from time to time
determine.
SECTION 4. QUORUM. At all meetings of the Board of Directors
one-third (1/3) of the total number of directors shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Restated Certificate of Incorporation
or by these by-laws.
SECTION 5. INFORMAL ACTION. The Board of Directors shall, except as
otherwise provided by law, have power to act in the following manner: A
resolution in writing, signed by all of the members of the Board of Directors
shall be deemed to be action by such Board to the effect therein expressed with
the same force and effect as if the same had been duly passed at a duly convened
meeting, and it shall be the duty of the Secretary of the Corporation to record
any such resolution in the minute book of the Corporation, under its proper
date.
ARTICLE IV
OFFICERS
SECTION 1. ELECTION. The Board of Directors shall elect officers of
the Corporation, including a Chairman of the Board, a Vice Chairman of the
Board, one or more Vice Presidents, a Secretary, a Treasurer and a Controller.
Such officers shall be elected at the annual meeting of the Board of Directors
following the annual meeting of stockholders. The Board of
Directors may, as it deems advisable, elect one or more Assistant
Vice Presidents, Assistant Secretaries and Assistant Treasurers and such other
officers as it may deem appropriate. The Board of Directors may at any meeting
fill any vacancy that shall occur, or create new offices and elect incumbents
thereto.
SECTION 2. TERM AND REMOVAL. The officers of the Corporation
designated in SECTION 1 of this Article IV, shall hold office for one year and
until their respective successors are chosen and qualify in their stead. Any
officer may be removed at any time, with or without cause, by the Board of
Directors. An officer appointed by the Executive Committee may also be removed
at any time, with or without cause by said Committee.
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SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors shall be the Chief Executive Officer of the Corporation and, subject
to the control of the Board of Directors, and of the committees exercising
functions of the Board of Directors, shall have general supervision over the
business and property of the Corporation. He shall preside at all meetings of
the stockholders and of the Board of Directors. He shall review and recommend
to the Board of Directors both short-term objectives and long-term planning for
the business. He shall also preside at meetings of any committee of which he is
a member which is not attended by the chairman of such committee. He or his
delegate may vote on behalf of the Corporation the shares owned by the
Corporation in other corporations in such manner as they deem advisable unless
otherwise directed by the Board of Directors. He shall have full authority to
take other action on behalf of the Corporation in respect of shares of stock in
other corporations owned by the Corporation, directly or indirectly, including
the obtaining of information and reports.
SECTION 4. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board of Directors shall, subject to the control of the Board of Directors and
of the committees exercising functions of the Board of Directors, perform such
duties as may from time to time be assigned to him by the Chairman of the Board.
He shall preside at meetings of the stockholders and of the Board of Directors
not attended by the Chairman of the Board.
SECTION 5. VICE PRESIDENTS. The Vice President shall have such
powers, duties, supplementary titles and other designations as the Board of
Directors may from time to time determine.
SECTION 6. SECRETARY. The Secretary shall attend all meetings of the
stockholders and the Board of Directors. He shall, at the invitation of the
chairman thereof, attend meetings of the committees elected by the Board or
established by these by-laws. He shall record all votes and minutes of all
proceedings which he attends and receive and maintain custody of all votes and
minutes of all such proceedings. Votes and minutes of meetings of the
Compensation and Audit Committees shall be recorded and maintained as each such
committee shall determine. The Secretary shall give or cause to be given notice
of meetings of the stockholders, Board of Directors, and, when instructed to do
so by the Chairman thereof, committees of the Board of Directors, and shall have
such other powers and duties as may be prescribed by appropriate authority. The
Secretary shall keep insafe custody the seal of the Corporation and shall affix
the seal to any instrument requiring the same. The Assistant Secretaries shall
have such powers and perform such duties as may be prescribed by appropriate
authority.
SECTION 7. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall deposit all
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monies and other valuable effects in the name and to the credit of the
Corporation in such depositaries as may be designated by, or in accordance with
general policies adopted by, the Board of Directors or Executive Committee. He
shall disburse the funds of the Corporation as may be ordered by the Chairman,
the chief financial officer, the Board of Directors or the Executive Committee,
taking proper vouchers for such disbursements, and shall render to the Chairman,
the chief financial officer and the Board of Directors whenever they may require
it, an account of all his transactions as Treasurer. He shall have such powers
and perform such duties as shall be assigned to him by appropriate authority.
The Assistant Treasurers shall have such powers and perform such duties as may
be prescribed by the chief financial officer or the Treasurer.
SECTION 8. CONTROLLER. The Controller shall be the chief accounting
officer of the Corporation. He shall keep or cause to be kept all books of
account and accounting records of the Corporation and shall render to the
Chairman, the chief financial officer and the Board of Directors whenever they
may require it, a report of the financial condition of the Corporation. He
shall have such other powers and duties as shall be assigned to him by
appropriate authority. The Assistant Controllers shall have such powers and
perform such duties as may be prescribed by the chief financial officer or the
Controller.
SECTION 9. BOND. The Board of Directors may, or the Chairman may,
require any officers, agents or employees of the Corporation to furnish bonds
conditioned on the faithful performance of their respective duties with a surety
company satisfactory to the Board of Directors or the Chairman as surety. The
expenses of such bond shall be paid by the Corporation.
ARTICLE V
COMMITTEES
SECTION 1. EXECUTIVE COMMITTEE. An Executive Committee, composed of
the Chairman and such other directors as the Board of Directors may determine
from time to time shall be elected by the Board of Directors. Except as
provided hereinafter or in resolutions of the Board, the Executive Committee
shall have, and may exercise when the Board is not in session, all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation and may authorize the seal of the Corporation to be
affixed to all papers which may require it. The Executive Committee shall not,
however, have power or authority in reference to amending the Restated
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the by-laws of the
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Corporation, or declaring a dividend. Unless and to the extent otherwise
provided for by resolutions of the Board of Directors, the Executive Committee
shall not have the power or authority to elect or appoint the Chairman of the
Board of the Corporation, or to authorize the acquisition or entering into of an
agreement for acquiring the stock or assets of any other corporation or business
entity in the event such acquisition involves an expenditure of more than
$10,000,000 or the issuance of more than 200,000 shares of the common stock of
the Corporation or in the event such other corporation or business entity is
engaged in any business other than the insurance, reinsurance, real estate
consulting, investment management or a related business. The Executive
Committee may authorize the issuance not to exceed 200,000 shares of common
stock of the Corporation at any one time for the purpose of acquiring the stock
or assets of another corporation as aforesaid, but may not authorize the
issuance of stock for any other purpose or authorize the issuance of debt
obligations except for short-term borrowings.
SECTION 2. COMPENSATION COMMITTEE. A Compensation Committee,
including a chairman, having such number of directors as the Board of Directors
shall determine from time to time, shall be elected by the Board of Directors.
No member of the Compensation Committee while holding such office and within the
previous year shall, in addition to usual compensation as a director, receive or
be granted or be eligible for any award or any other benefit under any
compensation, stock option or other benefit plans that the committee may
supervise, administer, or review or while holding such office shall be a
full-time employee of the Corporation or any of its subsidiaries. The
Compensation Committee shall fix the compensation of the chief executive officer
of the Corporation and approve the compensation of senior executives of the
Corporation or any of its subsidiaries designated under procedures established
by the Committee from time to time. The Compensation Committee will approve,
disapprove or modify the retention by the Corporation of advisors or consultants
on matters relating to the compensation of the chief executive officer and
senior executives of the Corporation. The Compensation Committee shall also
satisfy itself, if in its opinion circumstances make it desirable to do so, that
the general compensation policies and practices followed by the Corporation and
its subsidiaries are in the Corporation's best interests. The Compensation
Committee shall have such other duties as may be set forth in the Corporation's
compensation, stock option or other benefit plans as they may exist from time to
time, or otherwise as provided by the Board of Directors. The Compensation
Committee shall report to the Board at least annually and whenever the Board may
require respecting the discharge of the committee's duties and responsibilities.
The term "compensation" as used in this Section shall mean salaries, bonuses,
agreements to pay deferred compensation, and discretionary benefits such as
stock options, but shall not include payments to or under any employee pension,
retirement, profit sharing, stock investment, or similar plan.
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SECTION 3. AUDIT COMMITTEE. An Audit Committee, including a
chairman, having such number of directors as the Board of Directors may
determine from time to time, shall be elected by the Board of Directors. The
members of the Audit Committee shall be elected by the Board of Directors from
among the members of the Board who are not officers or employees of the
Corporation. The Audit Committee shall meet at least annually with the
Corporation's independent public accountants, and at any time during the year
when considered appropriate by the independent public accountants or the
committee. The committee shall review the annual financial statements of the
Corporation with the independent public accountants and shall review the
practices and procedures adopted by the Corporation in the preparation of such
financial statements. The Audit Committee shall submit recommendations to the
Board of Directors with respect to the selection of independent public
accountants to examine the Corporation's annual financial statements and shall
review the independent public accountant's annual scope of audit. The Audit
Committee shall, as it may deem appropriate from time to time, report and make
recommendations to the Board of Directors.
SECTION 4. REPORTS. The Executive Committee shall report to each
regular meeting and, if directed, to each special meeting of the Board of
Directors all action taken by such committee subsequent to the date of its last
report, and other committees shall report to the Board of Directors at least
annually.
SECTION 5. OTHER COMMITTEES. The Board of Directors may appoint such
other committee or committees as it deems desirable.
SECTION 6. ELECTION AND TERM. The Chairman and each member of every
committee shall be a member of and elected by the Board of Directors and shall
serve until he shall cease to be a member of the Board of Directors or his
membership on the committee shall be terminated by the Board.
SECTION 7. MEETINGS, QUORUM AND NOTICE. The Chairman of any
committee shall be the presiding officer thereof. Any committee may meet at
such time or times on notice to all the members thereof by the Chairman or by a
majority of the members or by the Secretary of the Corporation and at such place
or places as such notice may specify. At least twenty-four (24) hours' notice
of the meeting shall be given but such notice may be waived. Such notice may be
given by mail, telegraph, telephone or personally. Each committee shall cause
minutes to be kept of its meetings which record all actions taken. Such minutes
shall be placed in the custody of the Secretary of the Corporation except that
the Compensation and Audit Committees shall each determine who shall maintain
custody of its minutes or portions thereof. Any committee may, except as
otherwise provided by law, act in its discretion by a resolution or resolutions
in writing signed by all the members of
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such committee with the same force and effect as if duly passed by a duly
convened meeting. Any such resolution or resolutions shall be recorded in the
minute book of the committee under the proper date thereof. Members of any
committee may also participate in a meeting of such committee by means of
conference telephone or similar communications equipment, by means of which all
persons participating in the meeting can hear each other and participation in
the meeting pursuant to this provision shall constitute presence in person at
such meeting. A majority of the members of each committee shall constitute a
quorum.
ARTICLE VI
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. Each person who was or is made
a party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter, a "proceeding"), by reason of the fact that, on or
after May 21, 1987, he or she is serving or had served as a director, officer or
employee of the Corporation or, while serving as such director, officer or
employee, is serving or had served at the request of the Corporation as a
director, officer, employee or agent of, or in any other capacity with respect
to, another corporation or a partnership, joint venture, trust or other entity
or enterprise, including service with respect to employee benefit plans
(hereinafter, an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer or employee of the
Corporation, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by Delaware law, as the same exists or may hereafter
be changed or amended (but, in the case of any such change or amendment, only to
the extent that such change or amendment permits the Corporation to provide
broader indemnification rights than permitted prior thereto), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts to be paid in settlement) reasonably
incurred or suffered by an indemnitee in connection therewith and such
indemnification shall continue as to an indemnitee who has ceased to be a
director, officer or employee of the Corporation and shall inure to the benefit
of the indemnitee's heirs, executors and administrators; PROVIDED, HOWEVER, that
except as provided in Section 3 of this Article with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
an indemnitee in connection with a proceeding (or part thereof) initiated by the
indemnitee only if such proceeding (or part thereof) was authorized by the board
of directors of the Corporation. The right to indemnification conferred in this
Article shall be a contract right.
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SECTION 2. ADVANCEMENT OF EXPENSES. An indemnitee who is a director
or officer of the Corporation, and any other indemnitee to the extent authorized
from time to time by the board of directors of the Corporation, shall have the
right to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter, an "advancement of
expenses"); PROVIDED, HOWEVER, that, if the Delaware General Corporation Law
requires, an advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking (hereinafter, an "undertaking"), by or on behalf
of such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (hereinafter, a "final adjudication") that such indemnitee is not
entitled to be indemnified for such expenses under this Article or otherwise.
SECTION 3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under
Section 1 or Section 2 of this Article is not paid in full by the Corporation
within sixty days in the case of Section 1 and twenty days in the case of
Section 2 after a written claim has been received by the Corporation, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in
any such suit, or in a suit brought by the Corporation to recover an advancement
of expenses pursuant to terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification
hereunder (other than a suit brought by the indemnitee to enforce a right to an
advancement of expenses), it shall be a defense that, and (ii) any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking the Corporation shall be entitled to recover such expenses upon a
final adjudication that, the indemnitee has not met the applicable standard of
conduct set forth in the Delaware General Corporation Law. 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 suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its board of directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to the action. In any suit brought by the indemnitee
to enforce a right to indemnification or to an advancement of expenses
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hereunder, or by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
SECTION 4. INDEMNIFICATION OF AGENTS OF THE CORPORATION. The
Corporation may, to the extent authorized from time to time by its board of
directors, grant rights to indemnification, and to be paid by the Corporation
the expenses incurred in defending any proceeding in advance of its final
disposition, to any agent of the Corporation to the fullest extent of the
provisions of this Article with respect to the indemnification of directors,
officers and employees of the Corporation and advancement of expenses of
directors and officers of the Corporation.
SECTION 5. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification
and to the advancement of expenses conferred in this Article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the Corporation's Restated Certificate of Incorporation,
these by-laws, any agreement, vote of stockholders or disinterested directors,
or otherwise.
SECTION 6. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or of another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 7. SURVIVAL OF PRIOR INDEMNIFICATION PROVISIONS; EFFECT OF
SUBSEQUENT CHANGE ON EXISTING RIGHTS. Nothing contained in this Article shall
be construed as altering or eliminating the rights to indemnification existing,
or based upon service by an indemnitee, prior to May 21, 1987. Any repeal or
modification of this Article shall not adversely affect any right or protection
of a director, officer or employee of the Corporation existing at the time of
such repeal or modification.
ARTICLE VII
CHECKS, CONTRACTS, OTHER INSTRUMENTS
SECTION 1. DOCUMENTS, INSTRUMENTS NOT REQUIRING SEAL. All checks,
notes, drafts, acceptances, bills of exchange, orders for the payment of money,
and all written contracts and instruments of every kind which do not require a
seal shall be signed by such
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officer or officers, or person or persons as these by-laws, or the Board of
Directors or Executive Committee by resolution, may from time to time prescribe.
SECTION 2. DOCUMENTS, INSTRUMENTS REQUIRING SEAL. All bonds, deeds,
mortgages, leases, written contracts and instruments of every kind which require
the corporate seal of the Corporation to be affixed thereto, shall be signed and
attested by such officer or officers as these by-laws, or the Board of Directors
or Executive Committee, by resolution, may from time to time prescribe.
ARTICLE VIII
CAPITAL STOCK
SECTION 1. STOCK CERTIFICATES. The certificates for shares of the
capital stock of the Corporation shall be in such form, not inconsistent with
the Restated Certificate of Incorporation, as shall be approved by the Board of
Directors. Each certificate shall be signed by the Chairman of the Board of
Directors or a Vice President and also by the Secretary, an Assistant Secretary,
the Treasurer or an Assistant Treasurer, provided, however, that any such
signature of an officer of the Corporation or of the Transfer Agent, Assistant
Transfer Agent, Registrar or Assistant Registrar, or any of them, may be a
facsimile. In case any officer or officers who shall have signed, or whose
facsimile signature or signatures shall have been used on any such certificate
or certificates shall cease to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be used and
delivered as though the officer or officers who signed the said certificate or
certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be said officer or officers of the Corporation. All
certificates shall be consecutively numbered, shall bear the corporate seal and
the names and addresses of all persons owning shares of capital stock of the
Corporation with the number of shares owned by each; and, the date or dates of
issue of the shares of stock held by each shall be entered in books kept for
that purpose by the proper officers or agents of the Corporation.
SECTION 2. RECOGNITION OF HOLDERS OF RECORD. The Corporation shall
be entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof, and, accordingly, 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 has actual or other notice thereof, save as
expressly provided by the laws of the State of Delaware.
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SECTION 3. LOST CERTIFICATES. Except in cases of lost or destroyed
certificates, and in that case only after conforming to the requirements
hereinafter provided, no new certificates shall be issued until the former
certificate for the shares represented thereby shall have been surrendered and
cancelled. The Board of Directors may direct a new certificate or certificates
to be issued in place of any certificate or certificates theretofore issued by
the Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate or certificates to
be lost or destroyed; and the Board of Directors may, in its discretion and as a
condition precedent to the issuance of any such new certificate or certificates,
require (i) that the owner of such lost or destroyed certificate or
certificates, or his legal representative give the Corporation and its transfer
agent or agents, registrar or registrars a bond in such form and amount as the
Board of Directors may direct as indemnity against any claim that may be made
against the Corporation and its transfer agent or agents, registrar or
registrars, or (ii) that the person requesting such new certificate or
certificates obtain a final order or decree of a court of competent jurisdiction
as to his right to receive such new certificate or certificates.
SECTION 4. TRANSFER OF SHARES. Shares of stock shall be transferred
on the books of the Corporation by the holder thereof or by his attorney
thereunto duly authorized upon the surrender and cancellation of certificates
for a like number of shares.
SECTION 5. REGULATIONS GOVERNING TRANSFER OF SHARES. The Board of
Directors may make such regulations as it may deem expedient concerning the
issue, transfer and registration of stock.
SECTION 6. APPOINTMENT OF TRANSFER AGENT, REGISTRAR. The Board may
appoint a Transfer Agent or Transfer Agents and Registrar or Registrars for
transfers and may require all certificates to bear the signature of either or
both.
ARTICLE IX
MISCELLANEOUS
SECTION 1. INSPECTION OF BOOKS. The Board of Directors or the
Executive Committee shall determine from time to time whether and, if allowed,
when and under what conditions and regulations the accounts and books of the
Corporation (except such as may by statute be specifically open to inspection),
or any of them shall be open to the inspection of the stockholders, and the
stockholders' rights in this respect are and shall be restricted and limited
accordingly.
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SECTION 2. CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization, and the words
"Corporate Seal, Delaware".
SECTION 3. FISCAL YEAR. The fiscal year shall begin on the first day
of January of each year.
SECTION 4. WAIVER OF NOTICE. Whenever by statute, the provisions of
the Restated Certificate of Incorporation, or these by-laws, the stockholders,
the Board of Directors or any committee established by the Board of Directors in
accordance with these by-laws are authorized to take any action after notice,
such notice may be waived, in writing, before or after the holding of the
meeting at which such action is to be taken, by the person or persons entitled
to such notice or, in the case of a stockholder, by his attorney thereunto
authorized.
ARTICLE X
AMENDMENTS
SECTION 1. BY STOCKHOLDERS. These by-laws, or any of them, may be
amended, altered, changed, added to or repealed at any regular or special
meeting of the stockholders, by the affirmative vote of a majority of the shares
of stock then issued and outstanding.
SECTION 2. BY THE BOARD OF DIRECTORS. The Board of Directors, by
affirmative vote of a majority of its members, may, at any regular or special
meeting, amend, alter, change, add to or repeal these by-laws, or any of them,
but any by-laws made by the Directors may be amended, altered, changed, added to
or repealed by the stockholders.
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