Exhibit 3.2
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BY-LAWS OF
CAREY INTERNATIONAL, INC.
ARTICLE I
Offices
The registered office shall be in the City of Wilmington, County of New
Castle, State of Delaware, and the name of the resident agent in charge thereof
is the Corporation Service Company.
The corporation may also have offices at such other places within or
without the State of Delaware as the Board of Directors may from time to time
appoint or the business of the corporation may require.
ARTICLE II
Meetings of Stockholders
Section l. Place of Meetings. All meetings of stockholders for any
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purpose shall be held at such place, within or without the State of Delaware, as
shall be designated by the Board of Directors and stated in the notice of the
meeting.
Section 2. Annual Meeting. An annual meeting of the stockholders of the
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corporation, for the election of Directors to succeed those whose terms expire
and for the transaction of such other business as may properly come before the
meeting, shall be held on such date and at such time as shall be fixed from time
to time by the Board of Directors and stated in the notice of the meeting.
Section 3. Special Meetings. Special meetings of the stockholders may be
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called by the Chairman or by order of the Board of Directors. Business
transacted at any special meeting shall be confined to the purpose or purposes
stated in the notice of such meeting.
Section 4. Notice of Meeting. Notice of the time and place of holding
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each annual meeting and each special meeting of stockholders shall be given by
the Secretary, not less than ten nor more than sixty days before the meeting, to
each stockholder of record entitled to vote at such meeting. Notices of all
meetings of stockholders shall state the purposes for which the meetings are
held.
Section 5. List of Stockholders. At least ten days before every meeting
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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,
shall be prepared by the Secretary, who shall have charge of the stock ledger.
Such list shall be open for said ten days to the examination
of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, either at a place specified in the notice of the meeting (which
place shall be within the city
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where the meeting is to be held) or, if no such other place has been so
specified, at the place where the meeting is to be held. Such 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 present at the meeting.
Section 6. Quorum. At any meeting of stockholders, the holders of issued
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and outstanding shares of capital stock which represent a majority of the votes
entitled to be cast thereat, present in person or represented by proxy, shall
constitute a quorum for the transaction of business. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time until a
quorum shall be present or represented. Unless the adjournment is for more than
thirty days or a new record date is fixed for the adjourned meeting, notice of
the adjourned meeting need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally called.
Section 7. Voting. At any meeting of the stockholders, every stockholder
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having the right to vote shall be entitled to vote in person, or by proxy
appointed by an instrument in writing subscribed by such stockholder and bearing
a date not more than eleven months prior to said meeting. When a quorum is
present at any meeting, except with respect to the election of directors, the
holders of shares of stock present in person or represented by proxy, which
shares represent a majority of votes cast on any question before the meeting,
shall decide the question, unless the question is one upon which by express
provision of law or of the certificate of incorporation or of these By-laws a
different vote is required, in which case such express provision shall govern
and control the decision of such question. The election of directors shall be
decided by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote thereon.
Section 8. Fixing of Record Date. (a) In order that the corporation may
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determine the stockholders entitled to notice of or to vote at any meeting of
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 other than stockholder action by
written consent, the Board of Directors may fix a record date, which shall not
precede the date such record date is fixed and shall not be more than sixty nor
less than ten days before the date of such meeting, nor more than sixty days
prior to any such other action. If no record date is fixed, 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. The record date for any other purpose other than
stockholder action by written consent 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
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to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board 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 10 days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors.
Section 9. Nomination of Directors. Only persons who are nominated in
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accordance with the procedures set forth in the By-laws shall be eligible to
serve as Directors. Nominations of persons for election to the Board of
Directors of the corporation may be made at a meeting of stockholders (a) by or
at the direction of the Board of Directors or (b) by any stockholder of the
corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 9, who shall be entitled to vote for the election
of directors at the meeting and who complies with the notice procedures set
forth in this Section 9. Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the corporation. 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 less than 70 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 10th day following the day on which such
notice of the date of the meeting or such public disclosure was made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection 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
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a Director if elected); 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 (ii) the class and number of shares
of the corporation which are beneficially owned by such stockholder. At the
request of the Board of Directors, any person nominated by the Board of
Directors 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. No person shall be eligible to
serve as a Director of the Corporation unless nominated in accordance with the
procedures set forth in this By-law. 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 procedures prescribed by the By-laws, and if he or
she should so determine, he or she shall so declare to the meeting and the
defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Section 9, a stockholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations thereunder with respect to the
matters set forth in this Section.
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Section 10. Notice of Business. At any meeting of the stockholders, only
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such business shall be conducted as shall have been brought before the meeting
(a) by or at the direction of the Board of Directors or (b) by any stockholder
of the corporation who is a stockholder of record at the time of giving of the
notice provided for in this Section 10, who shall be entitled to vote at such
meeting and who complies with the notice procedures set forth in this Section
10. For business to be properly brought before a stockholder meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received 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 less than 70 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 received no later than the close
of business on the 10th day following the day on which such notice of the date
of the 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 meeting (a) a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (c) the class
and number of shares of the corporation which are beneficially owned by the
stockholder and (d) any material interest in the stockholder in such business.
Notwithstanding anything in the By-laws to the contrary, no business shall be
conducted at a stockholder meeting except in accordance with the procedures set
forth in this Section 10. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the provisions of the By-laws,
and if he or she should so determine, he or she shall so declare to the meeting
and any such business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing provisions of this Section 10, 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 Section. Nothing in this Section 10 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.
ARTICLE III
Directors
Section 1. Directors and Their Terms of Office. There shall be a Board of
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Directors consisting of not less than three nor more than fifteen persons, the
exact number of Directors to be determined from time to time by resolution
adopted by affirmative vote of a majority of the number of Directors required at
the time to constitute a full board as fixed in or determined pursuant to these
By-laws as then in effect. The Directors shall, except as otherwise provided in
Section 3 of this Article, be elected at the annual meeting or at any meeting of
the stockholders held in lieu of such annual meeting, which meeting, for the
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purposes of these By-laws, shall be deemed the annual meeting, and each Director
so elected shall hold office until his or her successor is elected and
qualified. A Director need not be a stockholder. Within the limits above
specified, the number of Directors may at any time be increased or decreased by
vote of the Directors at any meeting of the Directors provided that no decrease
in the number of Directors shall affect the term of any Director in office.
The Directors, other than those who may be elected by the holders of any
class or series of stock having preference over the Common Stock as to dividends
or upon liquidation, shall be classified, with respect to the time for which
they severally hold office, into three classes, designated Class I, Class II and
Class III, as nearly equal in number as possible, with the term of office of one
Class expiring each year. Directors of Class I shall be initially elected to
hold office for a term expiring at the next succeeding annual meeting of
stockholders, Directors of Class II shall be initially elected to hold office
for a term expiring at the second succeeding annual meeting of stockholders and
Directors of Class III shall be initially elected to hold office for a term
expiring at the third succeeding annual meeting of stockholders, with the
members of each Class to hold office until their successors are elected and
qualified. At each subsequent annual meeting of the stockholders of the
corporation, the successors to the Class of directors whose term expires at such
meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election.
Section 2. Powers of Directors. The affairs, property and business of the
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corporation shall be managed by the Board of Directors which may exercise all
such powers of the corporation and do all such lawful acts and things as are not
by law or by the certificate of incorporation or these By-laws directed or
required to be exercised or done by the stockholders.
Section 3. Vacancies. If any vacancies occur in the Board of Directors
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caused by the death, resignation, retirement, disqualification or removal from
office of any Directors or otherwise, or any new Directorship is created by any
increase in the authorized number of Directors (except as otherwise fixed
pursuant to the provisions of Article FOURTH of the Certificate of Incorporation
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock to elect directors under specified
circumstances), Directors to fill the vacancy or vacancies or to fill the newly
created Directorship shall be elected solely by a majority vote of the Directors
then in office, whether or not a quorum, at any meeting of the Board and the
Directors so chosen shall hold office until their successors, if any, are duly
elected and qualified. Any Director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the Class of
Directors in which the new directorship was created or the vacancy occurred and
until such Director's successor shall have been elected and qualified. No
decrease in the number of Directors constituting the Board of Directors shall
shorten the term of any incumbent Director.
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Section 4. Annual Meeting of Directors. The first meeting of each newly
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elected Board of Directors may be held without notice immediately after an
annual meeting of stockholders (or a special meeting of stockholders held in
lieu of an annual meeting) at the same place as that at which such meeting of
stockholders was held; or such first meeting may be held at such place (within
or without the State of Delaware) and time as shall be fixed by the consent in
writing of all the Directors, or may be called in the manner hereinafter
provided with respect to the call of special meetings.
Section 5. Regular Meetings of Directors. Regular meetings of the Board
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of Directors may be held at such times and at such place or places (within or
without the State of Delaware) as the Board of Directors may from time to time
prescribe. No notice need be given of any regular meeting and a notice, if
given, need not specify the purposes thereof.
Section 6. Special Meetings of Directors. Special meetings of the Board
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of Directors may be called at any time by or under the authority of the Chairman
and shall be called by him or her or by the Secretary on written request of any
two Directors or, if the Secretary fails to do so, by two Directors in the name
of the Secretary, to be held in each instance at such place (within or without
the State of Delaware) as the person calling the meeting may designate in the
call thereof. Notice of each special meeting of the Board of Directors, stating
the time and place thereof, shall be given to each Director by the Secretary not
less than twenty-four hours before the meeting. Such notice need not specify
the purposes of the meeting.
Section 7. Quorum; Voting. At any meeting of the Board of Directors a
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majority of the number of Directors required to constitute a full Board, as
fixed in or determined pursuant to these By-laws as then in effect, shall
constitute a quorum for the transaction of business, but if a quorum shall not
be present at any meeting of Directors, the Directors present thereat may
adjourn the meeting from time to time without notice other than announcement at
the meeting, until a quorum shall be present. Except as otherwise provided by
law or by the certificate of incorporation or by the By-laws, the affirmative
vote of at least a majority of the Directors present at a meeting at which there
is a quorum shall be the act of the Board of Directors.
Section 8. Meetings by Telephone. Members of the Board of Directors or of
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any committee thereof may participate in meetings of the Board of Directors or
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 such participation shall constitute presence in person at such
meeting.
Section 9. Action Without Meeting. Unless otherwise restricted by the
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certificate of incorporation, 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 of such committee,
as the case may be, consent thereto in writing and
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the writing or writings are filed with the minutes of proceedings of the Board
of Directors or of such committee.
Section 10. Compensation. By resolution of the Board of Directors, the
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Directors, as such, may receive stated salaries for their services, and may be
allowed a fixed sum and expenses of attendance, if any, for attendance at each
regular or special meeting of the Board. Members of committees may also be
allowed a fixed sum and expenses of attendance, if any, for attending committee
meetings. Nothing herein contained shall preclude any Director from serving the
corporation in any other capacity and receiving compensation for such services.
ARTICLE IV
Executive and Other Committees
The Board of Directors, by the affirmative vote of a majority of the number
of Directors required at the time to constitute a full board as fixed in or
determined pursuant to these By-laws as then in effect, may designate two or
more of its members to constitute an Executive Committee, which committee shall
have, when the Board of Directors is not in session, and may exercise, to the
extent provided by resolution of the Board of Directors, from time to time, all
the powers of the Board of Directors (including all action which may be taken by
the Board of Directors as by law, by the certificate of incorporation or by the
By-laws) insofar as such powers may be lawfully delegated, and may have power to
authorize the seal of the corporation to be affixed to all papers which may
require it.
The Board of Directors, by the affirmative vote of a majority of the number
of Directors required at the time to constitute a full Board as fixed in or
determined pursuant to these By-laws as then in effect, may also appoint other
committees, the members of which may, but need not, be Directors, the number
composing such committees not less than two, and the powers (to be advisory only
if all the members are not Directors) conferred upon them to be determined by
resolution of the Board of Directors.
No committee shall have power or authority to amend the certificate of
incorporation, adopt an agreement of merger or consolidation, recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommend to the stockholders a dissolution
of the corporation or a revocation of a dissolution, or amend the By-laws; and
unless the resolution shall expressly so provide, no committee shall have the
power or authority to declare a dividend or to authorize the issuance of stock.
Vacancies in the membership of committees shall be filled by the Board of
Directors at a regular meeting or at a special meeting.
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At any meeting of any committee a majority of the whole committee shall
constitute a quorum and except as otherwise provided by statute or by the
certificate of incorporation or by the By-laws the affirmative vote of at least
a majority of the members present at a meeting at which there is a quorum shall
be the act of the committee.
The Secretary of the corporation, or in his or her absence, an Assistant
Secretary, or other person designated by a committee, shall act as secretary of
such committee.
The Executive Committee and each of the other committees, except as
otherwise provided by resolution of the Board of Directors, shall fix the time
and place of its meetings within or without the State of Delaware, shall adopt
its own rules and procedure, and shall keep a record of its acts and proceedings
and report the same from time to time to the Board of Directors.
ARTICLE V
Officers
Section l. Officers and Their Election, Term of Office and Vacancies. The
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officers of the corporation shall be a Chairman of the Board, a President, a
Secretary, a Treasurer and such Executive Vice Presidents, Vice Presidents,
Assistant Secretaries, Assistant Treasurers and other officers as the Board of
Directors may from time to time determine and elect or appoint. All officers
shall be elected annually by the Board of Directors at their first meeting
following the annual meeting of stockholders or any special meeting held in lieu
thereof and shall hold office until their successors are duly elected and
qualified. The Chairman of the Board must be a Director. All other officers
may, but need not be, members of the Board of Directors. Two or more offices
may be held by the same person. Any officer elected by the Board of Directors
may be removed at any time by the Board of Directors. If any vacancy shall
occur among the officers, it shall be filled by the Board of Directors.
Section 2. Chairman of the Board. The Chairman of the Board shall be the
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chief executive officer of the corporation with full control and responsibility
for management decisions, subject to the supervision and control of the Board of
Directors and such limitations as the Board of Directors may from time to time
impose. The Chairman of the Board when present shall preside at all meetings of
the stockholders. It shall be his or her duty and he or she shall have the
power to see that all orders and resolutions of the Board are carried into
effect. The Chairman of the Board shall perform such additional duties and have
such additional powers as the Directors shall designate. In the absence or
disability of the Chairman of the Board, his or her powers and duties shall be
performed by such officer of the corporation as the Board shall designate.
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Section 3. President. In the absence of the Chairman of the Board,
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except as otherwise voted by the Board of Directors, the President shall preside
at all meetings of the stockholders and of the Board of Directors at which
present. The President shall have such duties and powers as are commonly
incident to the office and such other duties and powers as the Board of
Directors shall from time to time designate.
Section 4. Executive Vice Presidents. In the absence or disability of the
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President, his or her powers and duties shall be performed by the Executive Vice
President, if only one, or, if more than one, by the one designated for the
purpose by the Board. Each Executive Vice President shall have such other
powers and perform such other duties as the Board shall from time to time
designate.
Section 5. Treasurer. The Treasurer shall keep full and accurate accounts
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of receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositaries as shall be designated by the Board or in
the absence of such designation in such depositaries as he or she shall from
time to time deem proper. He or she shall disburse the funds of the corporation
as shall be ordered by the Board, taking proper vouchers for such disbursements.
He or she shall promptly render to the President and to the Board such
statements of his or her transactions and accounts as the President and Board
respectively may from time to time require. The Treasurer shall perform such
duties and have such powers additional to the foregoing as the Board may
designate.
Section 6. Assistant Treasurers. In the absence or disability of the
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Treasurer, his or her powers and duties shall be performed by the Assistant
Treasurer, if only one, or if more than one, by the one designated for the
purpose by the Board. Each Assistant Treasurer shall have such other powers and
perform such other duties as the Board shall from time to time designate.
Section 7. Secretary. The Secretary shall issue notices of all meetings
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of stockholders and Directors and of the executive and other committees where
notices of such meetings are required by law or these By-laws. He or she shall
keep the minutes of meetings of stockholders and of the Board of Directors and
of the executive and other committees, respectively, unless such committees
appoint their own respective secretaries and be responsible for the custody
thereof. Unless the Board shall appoint a transfer agent and/or registrar, the
Secretary shall be charged with the duty of keeping, or causing to be kept,
accurate records of all stock outstanding, stock certificates issued and stock
transfers. He or she shall sign such instruments as require his or her signature
and shall perform such other duties and shall have such powers as the Board of
Directors shall designate from time to time, in all cases subject to the control
of the Board of Directors. The Secretary shall have custody of the corporate
seal, shall affix and attest such seal on all documents whose execution under
seal is duly authorized. In his or her absence at any meeting, an Assistant
Secretary or the Secretary pro tempore shall perform his or her duties thereat.
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Section 8. Assistant Secretaries. In the absence or disability of the
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Secretary, his or her powers and duties shall be performed by the Assistant
Secretary, if only one, or, if more than one, by the one designated for the
purpose by the Board. Each Assistant Secretary shall have such powers and
perform such other duties as the Board shall from time to time designate.
Section 9. Salaries. The salaries of officers, agents and employees shall
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be fixed from time to time by or under authority from the Board of Directors.
ARTICLE VI
Resignations and Removals
Section 1. Officers, Agents, Employees and Members of Committees. Any
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officer, agent or employee of the corporation may resign at any time by giving
written notice to the Board of Directors or to the Chairman of the Board or
President or to the Secretary of the corporation; and any member of any
committee may resign by giving written notice either as aforesaid or to the
committee of which he or she is a member or to the chairman thereof. Any such
resignation shall take effect at the time specified therein, or if the time be
not specified, upon receipt thereof, and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
The Board of Directors may at any time, with or without cause, remove from
office or discharge or terminate the employment of any officer, agent, employee
or member of any committee.
Section 2. Directors. Any Director of the corporation may resign at any
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time by giving written notice to the Board of Directors or to the Chairman of
the Board or President or to the Secretary of the corporation. Any such
resignation shall take effect at the time specified therein, or if the time be
not specified, upon receipt thereof; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
When one or more Directors shall resign from the Board of Directors, effective
at a future date, a majority of the Directors then in office, including those
who have so resigned, shall have power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as provided in these
By-laws in the filling of other vacancies. The stockholders of the corporation
entitled to vote upon the election of Directors may, at any time, remove from
office any one or more Directors only with cause, and his or her successor or
their successors shall be elected by the remaining Directors as provided in
these By-laws with respect to the filling of other vacancies. A Director may be
removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him or her.
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ARTICLE VII
Indemnification of Directors, Officers and Others
Section 1. The corporation shall indemnify, to the fullest extent
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permitted by the General Corporation Law of the State of Delaware as presently
in effect or as hereafter amended:
(a) Subject to the provisions of Section 10, 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 and whether external or internal to the
corporation (other than by action by or in the right of the corporation) by
reason of the fact that he or she is or was a Director or officer of the
corporation, or is or was serving at the request of the corporation as a
Director or officer of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such suit, action or proceeding
if he or she acted 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 no reasonable
cause to believe that 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,
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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, that the person had no reasonable cause to believe that his
or her conduct was lawful.
(b) 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 or officer of the corporation,
or is or was serving at the request of the corporation as a Director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) and amounts paid
in settlement actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit 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 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 the
State of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably
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entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 2. The Board of Directors, in its discretion, may authorize the
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corporation to indemnify to the fullest extent permitted by the General
Corporation Law of the State of Delaware (as presently in effect or as hereafter
amended):
(a) Subject to the provisions of Section 10, 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 an employee
or agent of the corporation, or is or was serving at the request of the
corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him or her in connection with such suit, action
or proceeding 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 interest 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, that the person had no
reasonable cause to believe that his or her conduct was lawful.
(b) 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 an employee or agent of the corporation,
or is or was serving at the request of the corporation as an employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) and amounts paid
in settlement actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit 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 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 the
State of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
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Section 3. Any indemnification under this Article VII (unless required by
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law or ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the Director,
officer, employee or agent is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in Sections l and 2 of this
Article VII. Such determination shall be made (i) by a majority vote of the
Directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) if there are no such Directors, or if such Directors
so direct, by independent legal counsel in a written opinion, or (iii) by the
stockholders of the corporation.
Section 4. Expenses incurred by a Director or officer in defending a civil
---------
or criminal action, suit or proceeding shall be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the Director or officer to repay such
amount if it shall ultimately be determined that he or she is not entitled to be
indemnified by the corporation as authorized in this Article VII. Any advance
under this Section 4 shall be made promptly, and in any event within ninety
days, upon the written request of the person seeking the advance.
Section 5. The indemnification and advancement of expenses provided by, or
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granted pursuant to, the other Sections of this Article VII shall not be deemed
exclusive of any other rights to which any person, whether or not entitled to be
indemnified under this Article VII, may be entitled under any statute, by-law,
agreement, vote of stockholders or disinterested Directors or otherwise, both as
to action in his or her official capacity and as to action in another capacity
while holding such office. Each person who is or becomes a Director or officer
as described in Section 1 shall be deemed to have served or to have continued to
serve in such capacity in reliance upon the indemnity provided for in this
Article VII. All rights to indemnification under this Article VII shall be
deemed to be provided by a contract between the corporation and the person who
serves as a Director or officer of the corporation at any time while these By-
laws and other relevant provisions of the General Corporation Law of the State
of Delaware and other applicable law, if any, are in effect. Any repeal or
modification thereof shall not affect any rights or obligations then existing.
Section 6. The Board of Directors may at any time and from time to time
---------
cause the corporation 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 a 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 the provisions of the General Corporation Law of
the State of Delaware (as presently in effect or hereafter amended), the
Certificate of Incorporation of the corporation or these By-laws.
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Section 7. The corporation's indemnification under Sections 1 and 2 of
---------
this Article VII 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 a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall be reduced by any
amounts such person receives as indemnification (i) under any policy of
insurance purchased and maintained on his or her behalf by the corporation, (ii)
from such other corporation, partnership, joint venture, trust or other
enterprise, or (iii) under any other applicable indemnification provision.
Section 8. In the discretion of the Board of Directors of the corporation,
---------
for the purposes of this Article VII, references to "the corporation" may also
include any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its Directors or
officers, so that any person who is or was a Director or officer of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a Director or officer of another corporation, partnership, joint
venture, trust or other enterprise, would stand in the same position under the
provisions of this Article VII with respect to the resulting or surviving
corporation as he or she would have with respect to such other constituent
corporation if its separate existence had continued.
Section 9. In addition to and without limiting the foregoing provisions of
---------
this Article VII and except to the extent otherwise required by law, any person
seeking indemnification under or pursuant to Section 1 of this Article VII shall
be deemed and presumed to have met the applicable standard of conduct set forth
in Section l unless the contrary shall be established.
Section 10.
----------
(a) In addition to and without limiting the foregoing provisions of this
Article VII and except to the extent otherwise required by law, (a) it shall be
a condition of the corporation's obligation to indemnify under Sections l(a) and
2(a) of this Article VII (in addition to any other condition in these By-laws or
by law provided or imposed) that the person asserting, or proposing to assert,
the right to be indemnified, promptly after receipt of notice of commencement of
any action, suit or proceeding in respect of which a claim for indemnification
is or is to be made against the corporation, notify the corporation of the
commencement of such action, suit or proceeding, including therewith a copy of
all papers served and the name of counsel retained or to be retained by such
person in connection with such action, suit or proceeding, and thereafter to
keep the corporation timely and fully apprised of all developments and
proceedings in connection with such action, suit or proceeding or as the
corporation shall request, and (b) the fees and expenses of any counsel retained
by a person asserting, or proposing to assert, the right to be indemnified under
Section l(a) or 2(a) of this Article VII shall be at the expense of such person
unless the counsel retained shall have been approved by the corporation in
writing.
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(b) If a claim for indemnification or advancement of expenses under this
Article VII is not paid in full by the corporation within 90 days after a
written claim therefor has been received by the corporation, the claimant may at
any time thereafter bring suit against the corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expenses of prosecuting such claim.
Section 11. For purposes of this Article VII, references to "other
-----------
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service by a Director or officer of the corporation which
imposes duties on, or involves services by, such person with respect to any
employee benefit plan, its participants, or beneficiaries; and 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 VII.
Section 12. To the extent that a Director, officer, agent or employee of
-----------
the corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 or in Section 2, or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith.
Section 13. The indemnification and advancement of expenses provided by,
----------
or granted pursuant to, this Article VII 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 heirs, executors and administrators of such a person.
Section 14. If any term or provision of this Article VII or the
-----------
application thereof to any person, property or circumstance shall to any extent
be invalid or unenforceable, the remainder of this Article VII or the
application of such term or provision to persons, property or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term and provision of this Article VII shall be valid
and enforced to the fullest extent permitted by law.
ARTICLE VIII
Capital Stock
Section l. Stock Certificates. Each stockholder shall be entitled to a
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certificate or certificates representing in the aggregate the shares owned by
him or her and certifying the number and class thereof, which shall be in such
form as this Board shall adopt. Each certificate of stock shall be signed by the
President or Chief Executive Officer or a Vice President, and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant
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Secretary. 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 has ceased to be such
officer, transfer agent or registrar before the certificate is issued, such
certificate may nevertheless be issued by the corporation with the same effect
as if he or she were such officer, transfer agent or registrar at the date of
issue.
Section 2. Transfer of Stock. Shares of stock shall be transferable on
--------- -----------------
the books of the corporation pursuant to applicable law and such rules and
regulations as the Board of Directors shall from time to time prescribe.
Section 3. Holders of Record. Prior to due presentment for registration
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of transfer the corporation may treat the holder of record of a share of its
stock as the complete owner thereof exclusively entitled to vote, to receive
notifications and otherwise entitled to all the rights and powers of a complete
owner thereof, notwithstanding notice to the contrary.
Section 4. Transfer Agent and Registrar. The Board of Directors may at
--------- ----------------------------
any time appoint a transfer agent or agents and/or registrar or registrars for
the transfer and/or registration of shares of stock.
Section 5. Lost, Stolen, Destroyed or Mutilated Stock Certificates. The
--------- ------------------------------------------ ------------
Board of Directors may direct a new stock certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, destroyed or mutilated, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen, destroyed or mutilated. When authorizing such issue
of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen, destroyed or mutilated certificate or certificates,
or his or her legal representative, to (a) advertise the same in such manner as
it shall require and/or (b) give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen, destroyed or
mutilated and/or (c) comply with any other reasonable requirements prescribed by
the Board.
ARTICLE IX
Securities of Other Corporations
Subject to any limitations that may be imposed by the Board of Directors,
the Chairman of the Board of Directors, the President or any person or persons
authorized by the Board may in the name and on behalf of the corporation (i) act
or appoint any other person or persons (with or without powers of substitution)
to act in the name and on behalf of the corporation (as proxy or otherwise), at
any meeting of the holders of stock or other securities of any corporation or
other organization, securities of which shall be held by this
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corporation, or (ii) express consent or dissent, as a holder of such securities,
to corporate or other action by such other corporation or organization.
ARTICLE X
Checks, Notes, Drafts and Other Instruments
Checks, notes, drafts and other instruments for the payment of money drawn
or endorsed in the name of the corporation may be signed by any officer or
officers or person or persons authorized by the Board of Directors to sign the
same. No officer or person shall sign any such instrument as aforesaid unless
authorized by the Board to do so.
ARTICLE XI
Dividends and Reserves
Section l. Dividends. Dividends upon the capital stock of the corporation
--------- ---------
may, subject to any provisions of the certificate of incorporation, be declared
pursuant to law by the Board of Directors. Dividends may be paid in cash, in
property or in shares of the capital stock.
Section 2. Reserves. Before payment of any dividend there may be set
--------- --------
aside out of any funds of the corporation available for dividends such sum or
sums as the Board of Directors from time to time, in its absolute discretion,
thinks proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the Directors shall think conducive to the interest of
the corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
ARTICLE XII
Corporate Seal
The corporate seal shall be in such form as the Board of Directors may from
time to time prescribe and the same may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
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ARTICLE XIII
Fiscal Year
The fiscal year of the corporation shall end on November 30 of each year.
ARTICLE XIV
Books and Records
The books, accounts and records of the corporation, except as may be
otherwise required by the laws of the State of Delaware, may be kept outside of
the State of Delaware, at such place or places as the Board of Directors may
from time to time appoint. Except as may otherwise be provided by law, the
Board of Directors shall determine whether and to what extent the books,
accounts, records and documents of the corporation, or any of them, shall be
open to the inspection of the stockholders, and no stockholder shall have any
right to inspect any book, account, record or document of the corporation,
except as conferred by law or by resolution of the stockholders or Board of
Directors.
ARTICLE XV
Notices
Section l. Manner of Giving of Notice. Whenever the provisions of a law,
--------- --------------------------
the certificate of incorporation, the By-laws or rules of a committee require
notice to be given to any Director, officer, stockholder or member of a
committee, they shall not be construed to mean personal notice; such notice may
be given by telegram or by depositing such notice in a post office or letter
box, in a postage paid, sealed wrapper, addressed to such Director, officer,
stockholder or member of a committee at his or her address as the same appears
in the books or records of the corporation (unless he or she shall have filed
with the Secretary a written request that notice intended for him or her be sent
to some other address, in which case it shall be sent to the address designated
in the most recent such request); and the time when such telegram shall be
transmitted or notice deposited shall be deemed to be the time of the giving of
such notice.
Section 2. Waiver of Notice. Whenever notice is required by law, the
--------- ----------------
certificate of incorporation, the By-laws, or as otherwise provided by law, a
written waiver thereof, signed by the person entitled to notice, shall be deemed
equivalent to notice, whether signed before or after the time required for such
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
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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.
ARTICLE XVI
Severability
If any term or provision of the By-laws, or the application thereof to any
person or circumstance or period of time, shall to any extent be invalid or
unenforceable, the remainder of the By-laws, or the application of such term or
provision to persons or circumstances or periods of time other than those as to
which it is invalid or unenforceable, shall not be affected thereby and each
term and provision of the By-laws shall be valid and enforced to the fullest
extent permitted by law.
ARTICLE XVII
Amendments
The Board of Directors and the stockholders shall each have the power to
adopt, alter, amend and repeal these By-laws; and any By-laws adopted by the
Directors or the stockholders under the powers conferred hereby may be altered,
amended or repealed by the Directors or by the stockholders; provided, however,
that these By-laws shall not be altered, amended or repealed by action of the
stockholders, and no By-law shall be adopted by action of the stockholders,
without the affirmative vote of the holders of at least 75% of the then combined
voting power of all the shares of the corporation entitled to vote generally in
the election of directors, voting together as a single class.
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