EXHIBIT 3.2
BY-LAWS
OF
SUPERIOR NATIONAL INSURANCE GROUP, INC.
---------------------------------------
ARTICLE I
STOCKHOLDERS
Section 1.1. ANNUAL MEETINGS. An annual meeting of stockholders
shall be held for the election of directors at such date, time and place,
either within or without the State of Delaware, as may be designated by
resolution of the Board of Directors from time to time. Any other proper
business may be transacted at the annual meeting.
Section 1.2. SPECIAL MEETINGS. Special meetings of stockholders
for any purpose or purposes may be called at any time by the Board of
Directors, any officer of the Corporation or by ten percent (10%) of the
stockholders.
Section 1.3. NOTICE OF MEETINGS. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of
the meeting shall be given that shall state the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the
certificate of incorporation or these by-laws, the written notice of any
meeting shall be given not less than ten nor more than sixty days before the
date of the meeting to each stockholder entitled to vote at such meeting. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his address as
it appears on the records of the corporation.
Section 1.4. ADJOURNMENTS. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting. If the adjournment
is for more than thirty 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.
Section 1.5. QUORUM. Except as otherwise provided by law, the
certificate of incorporation or these by-laws, at each meeting of
stockholders the presence in person or by proxy of the holders of a majority
in voting power of the outstanding shares of stock entitled
1
to vote at the meeting shall be necessary and sufficient to constitute a
quorum. In the absence of a quorum, the stockholders so present may, by a
majority in voting power thereof, adjourn the meeting from time to time in
the manner provided in Section 1.4 of these by-laws until a quorum shall
attend. Shares of its own stock belonging to the corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the
corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of
the corporation or any subsidiary of the corporation to vote stock, including
but not limited to its own stock, held by it in a fiduciary capacity.
Section 1.6. ORGANIZATION. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or in his absence by the
Vice Chairman of the Board, if any, or in his absence by the President, or in
his absence by a Vice President, or in the absence of the foregoing persons
by a chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 1.7. VOTING; PROXIES. Except as otherwise provided by the
certificate of incorporation, each stockholder entitled to vote at any
meeting of stockholders shall be entitled to one vote for each share of stock
held by him which has voting power upon the matter in question. Each
stockholder entitled to vote at a meeting of stockholders or to express
consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with
an interest sufficient in law to support an irrevocable power. A stockholder
may revoke any proxy which is not irrevocable by attending the meeting and
voting in person or by filing an instrument in writing revoking the proxy or
by delivering a proxy in accordance with applicable law bearing a later date
to the Secretary of the corporation. Voting at meetings of stockholders need
not be by written ballot. At all meetings of stockholders for the election of
directors a plurality of the votes cast shall be sufficient to elect. All
other elections and questions shall, unless otherwise provided by law, the
certificate of incorporation or these by-laws, be decided by the affirmative
vote of the holders of a majority in voting power of the shares of stock
which are present in person or by proxy and entitled to vote thereon.
Section 1.8. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(A) ANNUAL MEETINGS OF STOCKHOLDERS. (1) Nominations
of persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the Corporation's notice of
meeting delivered pursuant to Section 1.3 of these By-laws, (b) by or at the
direction of the Chairman of the Board of Directors or (c) by any stockholder
of the Corporation who is entitled to vote at the meeting, who complied with
the notice procedures set forth in clauses (2) and (3) of this paragraph (A)
of this By-law and who was a stockholder of record at the time such notice is
delivered to the Secretary of the Corporation.
2
(2) For nominations or other business to be
properly brought before an annual meeting by a stockholder pursuant to clause
(c) of paragraph (A)(1) of this By-law, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than seventy days nor
more than ninety days prior to the first anniversary of the preceding year's
annual meeting; PROVIDED, HOWEVER, that in the event that the date of the
annual meeting is advanced by more than twenty days, or delayed by more than
seventy days, from such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the ninetieth day prior to such
annual meeting and not later than the close of business on the later of the
seventieth day prior to such annual meeting or the tenth day following the
day on which public announcement of the date of such meetings if first made.
Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including such person's written
consent to being named in the proxy statement as a nominee and to serving as
a director if elected; (b) as to any other business desired to be brought
before the meeting, the reasons for conducting such business at the meeting
and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and or record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second
sentence of paragraph (A)(2) of this By-law to the contrary, in the event
that the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement naming all of
the nominees for director or specifying the size of the increased Board of
Directors made by the Corporation at least eighty days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this By-law shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day following
the day on which such public announcement is first made by the Corporation.
(B) SPECIAL MEETINGS OF STOCKHOLDERS. Only such
business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the Corporation's notice of
meeting pursuant to Section 1.3 of these By-laws. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the
Corporation's
3
notice of meeting (a) by or at the direction of the Board of Directors or (b)
by any stockholder of the Corporation who is entitled to vote at the meeting,
who complies with the notice procedures set forth in this By-law and who is a
stockholder of record at the time such notice is delivered to the Secretary
of the Corporation. Nominations by stockholders of persons for election to
the Board of Directors may be made at such a special meeting of stockholders
if the stockholder's notice as required by paragraph (A)(2) of this By-law
shall be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the ninetieth day prior to such special meeting
and not later than the close of business on the later of the seventieth day
prior to such special meeting or the tenth day following the day on which
public announcement is first made of the date of the special meeting and of
the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
(C) GENERAL.
(1) Only persons who are nominated in
accordance with the procedures set forth in this By-law shall be eligible to
serve as director and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this By-law. Except as otherwise provided by
law, the Certificate of Incorporation or these By- laws, the chairman of the
meeting shall have the power and duty to determine whether a nomination or
any business proposed to be brought before the meeting was made in accordance
with the procedures set forth in this By-law and, if any proposed nomination
or business is not compliance with this By-law, to declare that such
defective proposal or nomination shall disregarded.
(2) For purposes of this By-law, "public
announcement" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or
in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of
this By-law, a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this By-law. Nothing in this By-law shall be deemed
to affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 1.9. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD. In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock or for the purpose of any other
lawful action, the
4
Board of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which record date: (1) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, not be more
than sixty nor less than ten days before the date of such meeting; (2) in the
case of determination of stockholders entitled to express consent to
corporate action in writing without a meeting, shall not be more than ten
days from the date upon which the resolution fixing the record date is
adopted by the Board of Directors; and (3) in the case of any other action,
shall not be more than sixty days prior to such other action. If no record
date is fixed: (1) the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day
on which the meeting is held; (2) the record date for determining
stockholders entitled to express consent to corporate action in writing
without a meeting, when no prior action of the Board of Directors is required
by law, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the
corporation in accordance with applicable law, or, if prior action by the
Board of Directors is required by law, shall be at the close of business on
the day on which the Board of Directors adopts the resolution taking such
prior action; and (3) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto. 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 1.10. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Secretary
shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in
the notice of the meeting, or if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof and may be inspected
by any stockholder who is present. Upon the willful neglect or refusal of
the directors to produce such a list at any meeting for the election of
directors, they shall be ineligible for election to any office at such
meeting. Except as otherwise provided by law, the stock ledger shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list of stockholders or the books of the corporation, or to vote
in person or by proxy at any meeting of stockholders.
Section 1.11. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING.
(a) Any action required to be taken at any annual or special
meeting of stockholders of the Corporation, or any action which may be taken
at any annual or special
5
meeting of the stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting for
the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the Corporation
by delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be made by hand or by
certified or registered mail, return receipt request.
(b) Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless, within
sixty (60) days of the date the earliest dated consent is delivered to the
Corporation, a written consent or consents signed by a sufficient number of
holders to take action are delivered to the Corporation in the manner
prescribed in paragraph (c) of this Section.
(c) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than ten (10) days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent shall, by
written notice to the Secretary, request the Board of Directors to fix a
record date. The Board of Directors shall promptly, but in all events within
ten (10) days after the date on which such a request is received, adopt a
resolution fixing the record date. If no record date has been fixed by the
Board of Directors within ten (10) days of the date on which such a request
is received, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by applicable law, shall be the first date on
which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation in accordance with paragraphs (a)
and (b) of this Section. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the
close of business on the date on which the Board of Directors adopts the
resolution taking such prior action.
(d) Within five (5) business days after receipt of the earliest
dated consent delivered to the Corporation in the manner provided in this
Section, the Corporation, shall retain nationally recognized independent
inspectors of elections for the purposes of performing a ministerial review
of the validity of consents and any revocations thereof. The cost of
retaining inspectors of election shall be borne by the Corporation.
(e) At any time that stockholders soliciting consents in writing
to corporate action have a good faith belief that the requisite number of
valid and unrevoked consents to
6
authorize or take the action specified has been received by them, the
consents shall be delivered by the soliciting stockholders of the
Corporation's registered office in the State of Delaware or principal place
of business or to the Secretary of the Corporation, together with a
certificate stating their belief that the requisite number of valid and
unrevoked consents has been received as of a specific date, which date shall
be identified in the certificate. In the event that delivery shall be made
to the Corporation's registered office in Delaware, such delivery shall be
made by hand or by certified or registered mail, return receipt requested.
Upon receipt of such consents, the Corporation shall cause the consents to be
delivered promptly to the inspectors of election. The Corporation also shall
deliver promptly to the inspectors of election any revocations of consents in
its possession, custody or control as of the time of receipt of the consents.
(f) As promptly as practicable after the consents and
revocations are received by them, the inspectors of election shall issue a
preliminary report to the Corporation stating: (i) the number of shares
represented by valid and unrevoked consents; (ii) the number of shares
represented by invalid consents; (iii) the number of shares represented by
invalid revocations; and (iv) the number of shares entitled to submit
consents as of the record date. Unless the Corporation and the soliciting
stockholders agree to a shorter or longer period, the Corporation and the
soliciting stockholders shall have five (5) days to review the consents and
revocations and to advise the inspectors and the opposing party in writing as
to whether they intend to challenge the preliminary report. If no timely
written notice of an intention to challenge the preliminary report is
received, the inspectors shall certify the preliminary report (as corrected
or modified by virtue or the detection by the inspectors of clerical errors)
as their final report and deliver it to the Corporation. If the Corporation
or the soliciting stockholders give timely written notice of an intention to
challenge the preliminary report, a challenge session shall be scheduled by
the inspectors as promptly as practicable. A transcript of the challenge
session shall be recorded by a certified court reporter. Following
completion of the challenge session, the inspectors shall issue as promptly
as practicable their final report and deliver it to the Corporation. A copy
of the final report shall be included in the book in which the proceedings of
meetings of stockholders are required.
(g) The Corporation shall give prompt notice to the stockholders
of the results of any consent solicitation or the taking of corporate action
without a meeting by less than unanimous written consent.
(h) This Section shall in no way impair or diminish the right of
any stockholder or director, or any officer whose title to office is
contested, to contest the validity of any consent or revocation thereof, or
to take any other action with respect thereto.
Section 1.12. INSPECTORS OF ELECTION. The corporation may, and
shall if required by law, in advance of any meeting of stockholders, appoint
one or more inspectors of election, who may be employees of the corporation,
to act at the meeting or any adjournment thereof and to make a written report
thereof. The corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. In the event that no
inspector so appointed or designated is able to act at a meeting of
stockholders, the person presiding at the
7
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall
take and sign an oath to execute faithfully the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspector or inspectors so appointed or designated shall (i) ascertain the
number of shares of capital stock of the corporation outstanding and the
voting power of each such share, (ii) determine the shares of capital stock
of the corporation represented at the meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors, and (v) certify their determination of the
number of shares of capital stock of the corporation represented at the
meeting and such inspectors' count of all votes and ballots. Such
certification and report shall specify such other information as may be
required by law. In determining the validity and counting of proxies and
ballots cast at any meeting of stockholders of the corporation, the
inspectors may consider such information as is permitted by applicable law.
No person who is a candidate for an office at an election may serve as an
inspector at such election.
Section 1.13. CONDUCT OF MEETINGS. The date and time of the
opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting by the
person presiding over the meeting. The Board of Directors of the corporation
may adopt by resolution such rules and regulations for the conduct of the
meeting of stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do
all such acts as, in the judgment of such chairman, are appropriate for the
proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the chairman of
the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules
and procedures for maintaining order at the meeting and the safety of those
present; (iii) limitations on attendance at or participation in the meeting
to stockholders of record of the corporation, their duly authorized and
constituted proxies or such other persons as the chairman of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (v) limitations on the time allotted
to questions or comments by participants. Unless and to the extent determined
by the Board of Directors or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
8
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. NUMBER; QUALIFICATIONS. The Board of Directors shall
consist of eleven (11) members unless changed by an amendment to the
Certificate of Incorporation. Any change in the authorized number of
directors or the provisions regarding the election of directors as shall
require the affirmative vote of the majority of the outstanding 14.5% Senior
Subordinated Voting Notes (the "Special Voting Notes"), voting as a separate
class. For purposes of this Section 2.1 and any By-law provisions regarding
the number or election of directors and the ability of the holders of the
Special Voting Notes to effect their rights, the Special Voting Notes shall
be considered outstanding shares entitled to vote. Directors need not be
stockholders.
Section 2.2. ELECTION; RESIGNATION; VACANCIES. The Board of
Directors shall initially consist of the persons named as directors in the
certificate of incorporation, and each director so elected shall hold office
until the first annual meeting of stockholders or until his successor is
elected and qualified. At the first annual meeting of stockholders and at
each annual meeting thereafter, the stockholders and the holders of the
Special Voting Notes (as described in the certificate of incorporation of the
corporation), voting together as one class, shall elect directors each of
whom shall hold office for a term of one year or until his successor is
elected and qualified. Any director may resign at any time upon written
notice to the corporation. Any newly created directorship or any vacancy
occurring in the Board of Directors by reason of death or resignation may be
filled by a majority of the remaining members of the Board of Directors,
although such majority is less than a quorum, or by a plurality of the votes
cast at a meeting of stockholders. Any vacancy occurring in the Board of
Directors by reason of removal of a director by the vote or written consent
of the shareholders may be filled only by a majority of the shares entitled
to vote represented at a duly held meeting at which a quorum is present, or
by the written consent of the holders of the outstanding shares entitled to
vote. Each director elected in accordance with either of the two preceding
sentences shall hold office until the expiration of the term of office of the
director whom he has replaced or until his successor is elected and qualified.
Section 2.3. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware
and at such times as the Board of Directors may from time to time determine,
and if so determined notices thereof need not be given.
Section 2.4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be held at any time or place within or without the State of
Delaware whenever called by the President, any Vice President, the Secretary,
or by any member of the Board of Directors.
9
Notice of a special meeting of the Board of Directors shall be given by the
person or persons calling the meeting at least twenty-four hours before the
special meeting.
Section 2.5. TELEPHONIC MEETINGS PERMITTED. Members of the Board
of Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof 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 a meeting pursuant to this
by-law shall constitute presence in person at such meeting.
Section 2.6. QUORUM; VOTE REQUIRED FOR ACTION. At all meetings of
the Board of Directors a majority of the whole Board of Directors shall
constitute a quorum for the transaction of business. Except in cases in
which the certificate of incorporation, these by-laws or applicable law
otherwise provides, the vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of
Directors.
Section 2.7. ORGANIZATION. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, if any, or in his
absence by the Vice Chairman of the Board, if any, or in his absence by the
President, or in their absence by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 2.8. ACTION BY WRITTEN CONSENT OF DIRECTORS. Unless
otherwise restricted by the certificate of incorporation or these by- laws,
any action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board of Directors or such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
10
ARTICLE III
COMMITTEES
Section 3.1. COMMITTEES. The Board of Directors may designate one
or more committees, each committee to consist of one or more of the directors
of the corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in place of any such absent or
disqualified member. Any such committee, to the extent permitted by law and
to the extent provided in the resolution of the Board of Directors, shall
have and may exercise all the powers and authority of the Board of Directors
in the management of the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all papers which may
require it.
Section 3.2. COMMITTEE RULES. Unless the Board of Directors
otherwise provides, each committee designated by the Board of Directors may
make, alter and repeal rules for the conduct of its business. In the absence
of such rules each committee shall conduct its business in the same manner as
the Board of Directors conducts its business pursuant to Article II of these
by-laws.
11
ARTICLE IV
OFFICERS
Section 4.1. EXECUTIVE OFFICERS; ELECTION; QUALIFICATIONS; TERM OF
OFFICE; RESIGNATION; REMOVAL; VACANCIES. The Board of Directors shall elect
a President and Secretary, and it may, if it so determines, choose a Chairman
of the Board and a Vice Chairman of the Board from among its members. The
Board of Directors may also choose one or more Vice Presidents, one or more
Assistant Secretaries, a Chief Financial Officer or a Treasurer and one or
more Assistant Treasurers. Each such officer shall hold office until the
first meeting of the Board of Directors after the annual meeting of
stockholders next succeeding his election, and until his successor is elected
and qualified or until his earlier resignation or removal. Any officer may
resign at any time upon written notice to the corporation. The Board of
Directors may remove any officer with or without cause at any time, but such
removal shall be without prejudice to the contractual rights of such officer,
if any, with the corporation. Any number of offices may be held by the same
person. Any vacancy occurring in any office of the corporation by death,
resignation, removal or otherwise may be filled for the unexpired portion of
the term by the Board of Directors at any regular or special meeting.
Section 4.2. POWERS AND DUTIES OF EXECUTIVE OFFICERS. The officers
of the corporation shall have such powers and duties in the management of the
corporation as may be prescribed in a resolution by the Board of Directors
and, to the extent not so provided, as generally pertain to their respective
offices, subject to the control of the Board of Directors. The Board of
Directors may require any officer, agent or employee to give security for the
faithful performance of his duties.
12
ARTICLE V
STOCK
Section 5.1. CERTIFICATES. Every holder of stock shall be entitled
to have a certificate signed by or in the name of the corporation by the
Chairman or Vice Chairman of the Board of Directors, if any, or the President
or a Vice President, and by the Chief Financial Officer or Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary, of the
corporation certifying the number of shares owned by him in the corporation.
Any of or all 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 he were such
officer, transfer agent, or registrar at the date of issue.
Section 5.2. LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE
OF NEW CERTIFICATES. The corporation may issue a new certificate of stock in
the place of any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give
the corporation a bond sufficient to indemnify it against any claim that may
be made against it on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such new certificate.
13
ARTICLE VI
INDEMNIFICATION
Section 6.1. RIGHT TO INDEMNIFICATION. The corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable
law as it presently exists or may hereafter be amended, any person (an
"Indemnitee") who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding"), by reason of the
fact that he, or a person for whom he is the legal representative, is or was
a director or officer of the corporation or, while a director or officer of
the corporation, is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability and
loss suffered and expenses (including attorneys' fees) reasonably incurred by
such Indemnitee. Notwithstanding the preceding sentence, except as otherwise
provided in Section 6.3, the corporation shall be required to indemnify an
Indemnitee in connection with a proceeding (or part thereof) commenced by
such Indemnitee only if the commencement of such proceeding (or part thereof)
by the Indemnitee was authorized by the Board of Directors of the corporation.
Section 6.2. PREPAYMENT OF EXPENSES. The corporation shall pay the
expenses (including attorneys' fees) incurred by an Indemnitee in defending
any proceeding in advance of its final disposition, PROVIDED, HOWEVER, that,
to the extent required by law, such payment of expenses in advance of the
final disposition of the proceeding shall be made only upon receipt of an
undertaking by the Indemnitee to repay all amounts advanced if it should be
ultimately determined that the Indemnitee is not entitled to be indemnified
under this Article VI or otherwise.
Section 6.3. CLAIMS. If a claim for indemnification or payment of
expenses under this Article VI is not paid in full within sixty days after a
written claim therefor by the Indemnitee has been received by the
corporation, the Indemnitee may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled to be
paid the expense of prosecuting such claim. In any such action the
corporation shall have the burden of proving that the Indemnitee is not
entitled to the requested indemnification or payment of expenses under
applicable law.
Section 6.4. NONEXCLUSIVITY OF RIGHTS. The rights conferred on any
Indemnitee by this Article VI shall not be exclusive of any other rights
which such Indemnitee may have or hereafter acquire under any statute,
provision of the certificate of incorporation, these by-laws, agreement, vote
of stockholders or disinterested directors or otherwise.
14
Section 6.5. OTHER SOURCES. The corporation's obligation, if any,
to indemnify or to advance expenses to any Indemnitee who was or is serving
at its request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, enterprise or nonprofit
entity shall be reduced by any amount such Indemnitee may collect as
indemnification or advancement of expenses from such other corporation,
partnership, joint venture, trust, enterprise or non-profit enterprise.
Section 6.6. AMENDMENT OR REPEAL. Any repeal or modification of
the foregoing provisions of this Article VI shall not adversely affect any
right or protection hereunder of any Indemnitee in respect of any act or
omission occurring prior to the time of such repeal or modification.
Section 6.7. OTHER INDEMNIFICATION AND PREPAYMENT OF EXPENSES.
This Article VI shall not limit the right of the corporation, to the extent
and in the manner permitted by law, to indemnify and to advance expenses to
persons other than Indemnitees when and as authorized by appropriate
corporate action.
15
ARTICLE VII
MISCELLANEOUS
Section 7.1. FISCAL YEAR. The fiscal year of the corporation shall
be determined by resolution of the Board of Directors.
Section 7.2. SEAL. The corporate seal shall have the name of the
corporation inscribed thereon and shall be in such form as may be approved
from time to time by the Board of Directors.
Section 7.3. WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS,
DIRECTORS AND COMMITTEES. Any written waiver of notice, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends
a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at nor
the purpose of any regular or special meeting of the stockholders, directors,
or members of a committee of directors need be specified in any written
waiver of notice.
Section 7.4. INTERESTED DIRECTORS; QUORUM. No contract or
transaction between the corporation and one or more of its directors or
officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction,
or solely because his or their votes are counted for such purpose, if: (1)
the material facts as to his relationship or interest and as to the contract
or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than
a quorum; or (2) the material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (3) the contract or
transaction is fair as to the corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
Section 7.5. FORM OF RECORDS. Any records maintained by the
corporation in the regular course of its business, including its stock
ledger, books of account, and minute books, may be kept on, or be in the form
of, punch cards, magnetic tape, photographs,
16
microphotographs, or any other information storage device, provided that the
records so kept can be converted into clearly legible form within a
reasonable time.
Section 7.6. AMENDMENT OF BY-LAWS. These by-laws may be altered or
repealed, and new by-laws made, by the Board of Directors, but the
stockholders may make additional by-laws and may alter and repeal any by-laws
whether adopted by them or otherwise.
17