EXHIBIT 3.3(a)
BY-LAWS
OF
UCAR FINANCE INC.
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January 27, 2000
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TABLE OF CONTENTS
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PAGE
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ARTICLE I - MEETINGS OF STOCKHOLDERS..................................................1
Section 1. Place of Meetings.........................................1
Section 2. Annual Meeting............................................1
Section 3. Special Meetings..........................................1
Section 4. Record Date...............................................1
Section 5. Notice of Meetings; Waiver................................2
Section 6. List of Stockholders......................................3
Section 7. Quorum; Manner of Acting..................................3
Section 8. Business Transacted.......................................4
Section 9. Order of Business; Voting.................................5
Section 10. Inspectors................................................6
ARTICLE II - BOARD OF DIRECTORS.......................................................6
Section 1. Powers; Qualifications; Number; Election..................6
Section 2. Term of Office of a Director..............................7
Section 3. Resignations; Filling of Vacancies........................7
Section 4. Meetings of the Board; Notice; Waiver.....................7
Section 5. Quorum; Adjournment.......................................8
Section 6. Manner of Acting..........................................8
Section 7. Annual Meeting of Directors..............................11
Section 8. Participation in Meeting by Telephone....................11
Section 9. Compensation and Expenses of Directors.................. 11
ARTICLE III - COMMITTEES OF THE BOARD................................................10
Section 1. Regular Committees.......................................10
Section 2. Regular Committee Powers.................................10
Section 3. Advisory Committees......................................11
Section 4. Procedures...............................................11
ARTICLE IV - OFFICERS................................................................11
Section 1. Officers.................................................11
Section 2. President................................................12
Section 3. Vice Presidents..........................................12
Section 4. Treasurer................................................12
Section 5. Secretary................................................13
Section 6. Additional Officers......................................13
Section 7. Removal..................................................13
Section 8. Resignations.............................................13
Section 9. Giving of Bond by Officers...............................14
Section 10. Compensation of Officers.................................14
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Section 11. Term of Office...........................................14
Section 12. Voting Upon Stock........................................14
ARTICLE V - INDEMNIFICATION..........................................................15
Section 1. Indemnification..........................................15
Section 2. Indemnification Not Exclusive............................16
Section 3. Successors...............................................16
Section 4. Insurance................................................17
Section 5. Definition of Certain Terms..............................17
ARTICLE VI - CONTRACTS; BANK ACCOUNTS................................................17
Section 1. Execution of Contracts...................................17
Section 2. Checks; Drafts; Notes....................................18
Section 3. Deposits.................................................18
ARTICLE VII - SHARES; DIVIDENDS......................................................18
Section 1. Certificates.............................................18
Section 2. Transfers................................................18
Section 3. Lost or Destroyed Certificates...........................19
Section 4. Fractions of a Share.....................................19
Section 5. Dividends................................................19
ARTICLE VIII - CORPORATE SEAL........................................................20
ARTICLE IX - FISCAL YEAR.............................................................20
ARTICLE X - AMENDMENTS...............................................................20
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ARTICLE I - MEETINGS OF STOCKHOLDERS
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SECTION 1. PLACE OF MEETINGS.
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All meetings of stockholders shall be held at the registered office
of the Corporation in the State of Delaware or at such other places within or
without the State of Delaware as may be specified in the notices of such
meetings.
SECTION 2. ANNUAL MEETING.
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An annual meeting of stockholders for the election of directors and
the transaction of such other business as may be properly brought before such
meeting shall be held on such date as the Board of Directors (the "Board") may,
from time to time, determine. Any annual meeting of stockholders may be
adjourned from time to time until the business to be transacted at such meeting
is completed.
SECTION 3. SPECIAL MEETINGS.
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Special meetings of stockholders can be called only as provided in
the Certificate of Incorporation of the Corporation, as then in effect (the
"Certificate of Incorporation"). Each such meeting shall be called by giving
notice to that effect to the Secretary not more than sixty-five (65) days and
not less than fifteen (15) days before the date of such meeting. Such notice
shall state the place, date, hour and purpose or purposes of such meeting.
Promptly after receipt of any such notice and, in any event, not more than sixty
(60) days and not less than ten (10) days before the date of such meeting the
Secretary shall give notice of such meeting in accordance with Section 5 of this
Article I to all stockholders entitled to vote thereat. Any special meeting may
be adjourned in accordance with Section 5(c) of this Article I from time to time
until the business to be transacted at such meeting is completed.
SECTION 4. RECORD DATE.
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(a) In order to determine the stockholders entitled to notice of or
to vote at any meeting of stockholders or any adjournment thereof, the Board may
fix a record date, which record date shall not precede the date upon which the
resolution fixing such record date is adopted by the Board and which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of
such meeting. If no record date is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be the close of business on the day next preceding the day on
which notice of such meeting is given or, if such notice is waived by all of the
stockholders, the close of business on the day next preceding the day on which
such meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board may fix a new record date for
such adjourned meeting.
(b) In order to determine the stockholders entitled to consent to
action in writing without a meeting, the Board may fix a record date, which
record date shall not precede the date upon which the resolution fixing such
record date is adopted by the Board and which record date shall not be more than
ten (10) days after the date upon which the resolution fixing
such record date is adopted by the Board. If no record date is fixed by the
Board, the record date for determining stockholders entitled to consent to
action in writing without a meeting, when no prior action by the Board is
required by the General Corporation Law of the State of Delaware, as then in
effect (the "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 at its registered office in the State of Delaware, its principal
place of business or an officer or agent of the Corporation having custody of
the books in which proceedings of meeting of stockholders are recorded. Delivery
made to the Corporation at its registered office shall be made by personal
delivery or by certified or registered mail, return receipt requested. If no
record date has been fixed by the Board and prior action by the Board is
required by the Law, the record date for determining stockholders entitled to
consent to action in writing without a meeting shall be the close of business on
the day on which the Board adopts the resolution taking such prior action.
(c) In order to determine the stockholders (i) entitled to receive
payment of any dividend or other distribution or allotment of any rights or to
exercise any rights in respect of any change, conversion or exchange of shares
of capital stock of the Corporation or (ii) for the purpose of any other lawful
action, the Board may fix a record date, which record date shall not precede the
date upon which the resolution fixing such record date is adopted and which
record date shall be not more than sixty (60) days prior to such action. If no
record date is fixed, the record date for determining stockholders therefor
shall be at the close of business on the day on which the Board adopts the
resolution relating to such action.
SECTION 5. NOTICE OF MEETINGS; WAIVER.
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(a) Each notice of each meeting of stockholders shall state the
place, date and hour of such meeting and, unless it is an annual meeting of
stockholders, shall indicate that it is being sent by or at the direction of the
person or persons calling such meeting and state the purpose or purposes for
which such meeting is being called. If at any meeting of stockholders action is
proposed to be taken which would, if taken, give stockholders fulfilling the
requirements of Section 262 of the Law the right to receive payment for their
shares of capital stock of the Corporation, the notice of such meeting shall
include a statement of such proposed action and such right. Not less than ten
(10) nor more than sixty (60) days before the date of such meeting, the
Secretary shall give or cause to be given a copy of the notice of such meeting,
either by personal delivery or by mail, to each stockholder entitled to vote at
such meeting. If mailed, such notice shall be deemed to have been given to a
stockholder when it is deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the stock records of
the Corporation or, if he shall have filed with the Secretary a written request
that notices to him be mailed to some other address, then directed to him at
such other address.
(b) A written waiver of notice of a meeting of stockholders signed
by a stockholder entitled to notice of such meeting, before or after such
meeting, shall be deemed to be equivalent to the giving of proper notice to such
stockholder of such meeting. Attendance of a stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
such stockholder attends such meeting for the express purpose of objecting, at
the commencement of such meeting, to the transaction of any business at such
meeting because such meeting was not lawfully called or convened. Neither the
business to be transacted at nor the
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purpose of any meeting of stockholders is required to be specified in any
written waiver of notice of such meeting.
(c) When a meeting of stockholders is adjourned to another time or
place, it shall not be necessary to give any notice of the adjourned meeting if
the time and place to which such meeting is adjourned are announced at such
meeting. Any business may be transacted at such adjourned meeting which might
have been transacted at such meeting. If the adjournment is for more than thirty
(30) days or if, after such adjournment, the Board fixes a new record date for
such adjourned meeting, a notice of such adjourned meeting shall be given to
each stockholder entitled to vote at such adjourned meeting.
SECTION 6. LIST OF STOCKHOLDERS.
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The Secretary shall prepare, at least ten (10) days prior to each
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting, arranged in alphabetical order and showing the address of each
such stockholder and the number of shares held of record by each such
stockholder. Such list shall be open for inspection by any stockholder, for
purposes germane to such meeting, during ordinary business hours, for the ten
(10) days prior to such meeting, either at a place in the city where such
meeting is to be held, which place shall be specified in the notice of such
meeting, or, if not so specified, at the place where such meeting is to be held.
Such list shall also be produced and kept open at such meeting during the whole
time thereof and may be inspected by any stockholder who is present thereat. The
stock records of the Corporation shall be conclusive evidence as to who are the
stockholders entitled to examine such stock records, the list described in this
Section 6 or the books of the Corporation or to vote at any meeting of
stockholders.
SECTION 7. QUORUM; MANNER OF ACTING.
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(a) Except as otherwise required by the Law or the Certificate of
Incorporation, the presence, at the commencement of such meeting, in person or
by proxy of holders of a majority of the issued and outstanding shares of
capital stock of the Corporation entitled to vote at a meeting of stockholders
shall be required in order to constitute a quorum for the transaction of
business thereat.
(b) If a quorum shall not be present at the commencement of any
meeting of stockholders, a majority of the stockholders present in person or by
proxy may adjourn such meeting to another time and place.
(c) Except as otherwise required by the Law or the Certificate of
Incorporation and except as otherwise provided in these By-Laws with respect to
the election of directors, a matter submitted to a vote at a meeting of
stockholders shall have been approved only if a quorum was present at the
commencement of such meeting and the holders of a majority of the issued and
outstanding shares of the capital stock of the Corporation represented at such
meeting and entitled to vote on such matter shall have voted to approve such
matter.
(d) Every stockholder entitled to vote at a meeting of stockholders
may authorize another person or persons to act for him by proxy. Such
authorization must be granted
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by a means expressly permitted by the Law. No proxy shall be voted or acted upon
after three (3) years from its date unless such proxy provides that it may be
voted or acted upon for a longer period. A duly executed 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
relevant meeting of stockholders and voting or acting in person, by filing with
the Secretary a written instrument revoking such proxy or by filing with the
Secretary another duly executed proxy bearing a later date.
SECTION 8. BUSINESS TRANSACTED.
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(a) No business shall be transacted at any meeting of stockholders
unless it shall have been properly brought (i) before a special meeting of
stockholders by the person or persons calling such meeting as permitted by the
Certificate of Incorporation, (ii) before an annual meeting of stockholders by
or at the direction of the Board or any other person or persons who could call a
special meeting of stockholders as permitted by the Certificate of Incorporation
or (iii) by a stockholder who is entitled to vote thereon at such meeting. The
chairman of such meeting shall determine whether any business to be brought
before such meeting will be properly so brought in accordance with this Section
and, if he should determine that such business will not be properly so brought,
he shall so declare at such meeting and such business shall not be transacted at
such meeting.
(b) No individual shall be eligible for election as a director
unless he is nominated in accordance with this Section. Nominations of
individuals for election as directors may be made at a meeting of stockholders
at which directors are to be elected only (i) by or at the direction of the
Board, a nominating committee of the Board or any other person or persons who
could call a special meeting of stockholders as permitted by the Certificate of
Incorporation or (ii) by a stockholder who is entitled to vote for the election
of directors at such meeting. The chairman of such meeting shall determine
whether any nomination to be made at such meeting will be properly so made in
accordance with this Section and, if he should determine that such nomination
will not be properly so made, he shall so declare at such meeting and such
nomination shall not be made at such meeting.
SECTION 9. ORDER OF BUSINESS; VOTING.
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(a) The Chairman of the Board or, in the absence of the Chairman of
the Board (including an absence because no Chairman of the Board shall have been
designated), the President, or, in the absence of both of them, a Vice
President, or, in the absence of all of them, a person designated by the Board,
or in the absence of all of them, a person designated by the holders of a
majority of the outstanding shares of capital stock of the Corporation present
in person or by proxy and entitled to vote at such meeting shall act as the
chairman of such meeting. The chairman of each meeting of stockholders shall
call such meeting to order, determine the order of business at such meeting and
otherwise preside over such meeting.
(b) The Secretary shall act as secretary of each meeting of
stockholders and keep the minutes thereof, but, in the absence of the Secretary,
the chairman of such meeting shall appoint some other person to act as secretary
of such meeting.
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(c) Unless required by the Law, requested by any stockholder
present in person or by proxy and entitled to vote at such meeting or directed
by the chairman of such meeting, neither the vote for the election of directors
nor upon any other business before any meeting of stockholders is required to be
conducted by written ballot. On a vote by written ballot, (i) each written
ballot cast by a stockholder voting in person shall state the name of such
stockholder, the number of shares of capital stock of the Corporation held of
record by him and the number of such shares voted by him and (ii) each ballot
cast by proxy shall bear the name of such proxy, the name of the stockholder for
whom he is voting, the number of shares of capital stock of the Corporation held
of record by such stockholder and the number of such shares voted on behalf of
such stockholder.
(d) Shares of capital stock of the Corporation held by the
Corporation or any of its majority-owned subsidiaries in treasury shall not be
shares entitled to vote at, or to be counted in determining the presence of a
quorum for, any meeting of stockholders or be counted in determining the total
number of outstanding shares of capital stock of the Corporation. This Section
shall not limit the right of the Corporation or any of its subsidiaries to vote
any shares of capital stock of the Corporation held by the Corporation or such
subsidiary in a fiduciary capacity.
(e) Any action required or permitted to be taken at a meeting of
stockholders may be taken without a meeting, without any prior notice and
without a vote, if stockholders having not less than the minimum number of votes
that would be necessary to take such action at a meeting at which all
stockholders entitled to vote thereon were present and voting, consent in
writing to such action and such writing or writings are filed with the minutes
of proceedings of the stockholders. Prompt written notice of the taking of such
action shall be given by the Secretary to all Stockholders who have not
consented in writing to such action.
SECTION 10. INSPECTORS.
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(a) The Board in advance of any meeting of stockholders may (and
shall, if required by the Law) appoint one or more inspectors to act at such
meeting or any adjournment thereof. If inspectors are not so appointed, the
chairman of such meeting may and, on request of any stockholder present in
person or by proxy and entitled to vote at such meeting, shall appoint one or
more such inspectors. No director, nominee for director, officer or employee of
the Corporation shall be appointed as an inspector. Inspectors need not be
stockholders. In case any person so appointed fails to appear or act, the
vacancy may be filled by appointment of another person by the Board in advance
of such meeting or at such meeting by the chairman of such meeting.
(b) Each inspector appointed to act at any meeting of stockholders
shall, before entering upon the discharge of his duties, take and sign an oath
to execute faithfully the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. Such inspectors shall (i)
determine the number of shares outstanding and the voting power of each such
share, the number of shares represented at such meeting, the existence of a
quorum and the validity and effect of proxies, (ii) receive votes or ballots,
(iii) hear and determine all challenges and questions arising in connection with
the right to vote, (iv) count and tabulate all votes or
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ballots, (v) determine the result and (vi) do all acts which may be proper in
connection with conducting a vote at such meeting, with fairness to all
stockholders. On the request of the chairman of such meeting or any stockholder
present in person or by proxy and entitled to vote at such meeting, the
inspectors shall make a report in writing of any challenge, question or matter
determined by them and execute a certificate of any fact found by them. Any such
report or certificate shall be prima facie evidence of the facts so stated and
of the vote so certified.
ARTICLE II - BOARD OF DIRECTORS
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SECTION 1. POWERS; QUALIFICATIONS; NUMBER; ELECTION.
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(a) The business and affairs of the Corporation shall be managed by
or under the direction of the Board. The Board may exercise all of the authority
and powers of the Corporation and do all of the lawful acts and things which are
not by the Law, the Certificate of Incorporation or these By-Laws directed or
required to be exercised or done by the stockholders. The directors shall act
only as a board and the individual directors shall have no power as such. Each
director shall be at least twenty-five (25) years of age. A director is not
required to be a resident of the State of Delaware or a stockholder. The Board
shall consist of that number of directors as shall be fixed in accordance with
the Certificate of Incorporation.
(b) At all elections of directors by stockholders entitled to vote
thereon, the individuals receiving a plurality of the votes cast shall be deemed
to have been elected as directors.
SECTION 2. TERM OF OFFICE OF A DIRECTOR.
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The term of office of each director shall commence at the time of
his election and qualification and shall expire upon the due election and
qualification of his successor (which may be such director, if he is re-elected)
at the annual meeting of stockholders following his election or his earlier
death, resignation or removal.
SECTION 3. RESIGNATIONS; FILLING OF VACANCIES.
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(a) Any director may resign at any time by giving written notice of
his resignation to the Board or the Secretary. Such resignation shall take
effect at the time of receipt of such notice by the Board or the Secretary, as
the case may be, or at any later time specified therein and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
(b) Any vacancy on the Board can be filled as (but only as)
provided in the Certificate of Incorporation. A director elected to fill such a
vacancy shall hold office as provided in the Certificate of Incorporation.
SECTION 4. MEETINGS OF THE BOARD; NOTICE; WAIVER.
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(a) All regular meetings of the Board shall be held at such places
within or without the State of Delaware as may be fixed by the Board. All
special meetings of the Board
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shall be held at such places within or without the State of Delaware as may be
specified in the notices of such meetings.
(b) Regular meetings of the Board for the transaction of such
business as may be properly brought before such meetings shall be held on such
dates and at such times as may be fixed by the Board. Notices of such regular
meetings are not required to be given.
(c) Special meetings of the Board may be called at any time by the
President or any director. Each such meeting shall be called by giving notice to
that effect to the Secretary at least forty-eight (48) hours before such
meeting. Such notice shall state the place, date, hour and purpose or purposes
of such meeting. Promptly after receipt of such notice and, in any event, not
less than twenty-four (24) hours before such meeting, the Secretary shall give
notice of such meeting to all directors. Such notice shall state the place,
date, hour and purpose or purposes of such meeting and shall indicate that such
notices are being sent at the request of the person calling such meetings.
Except as otherwise required by the Law, each notice of each special meeting of
the Board shall be given by (i) mail addressed to a director at his residence or
usual place of business at least seven (7) days before the date of such meeting
or (ii) personal delivery or telex, telephone, telegraph, telecopier or other
electronic means addressed to a director at his usual place of business at least
twenty-four (24) hours before such meeting. If mailed, such notice shall be
deemed to have been given to a director five (5) days after it is deposited in
the United States mail, postage prepaid, directed to such director at his
residence or usual place of business.
(d) A written waiver of notice of a meeting of the Board signed by
a director, before or after such meeting, shall be deemed to be equivalent to
the giving of proper notice to such director of such meeting. Attendance of a
director at a meeting of the Board shall constitute a waiver of notice of such
meeting, except when such director attends such meeting for the express purpose
of objecting, at the commencement of such meeting, to the transaction of any
business at such meeting because such meeting was not lawfully called or
convened. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the Board is required to be specified in any
written waiver of notice of such meeting.
SECTION 5. QUORUM; ADJOURNMENT.
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The presence of a majority of the Board at any meeting of the Board
shall be required in order to constitute a quorum for the transaction of
business thereat. Any meeting of the Board may be adjourned from time to time
until the business to be transacted at such meeting is completed. If a quorum
shall not be present at any such meeting, a majority of the directors present
may adjourn such meeting to another time and place. When a meeting of the Board
is adjourned to another time and place, it shall not be necessary to give any
notice of the adjourned meeting if the time and place to which such meeting is
adjourned are announced at such meeting. Any business may be transacted at such
adjourned meeting which might have been transacted at such meeting.
SECTION 6. MANNER OF ACTING.
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(a) The Board may designate a Chairman of the Board. The Chairman
of the Board shall preside at all meetings of the stockholders and of the Board.
He shall perform such other duties as the Board may from time to time assign to
him. In the absence of the Chairman of the Board (including an absence because
no Chairman of the Board shall have been designated), a person designated by a
majority of the directors present at such meeting shall serve as the chairman of
such meeting. The chairman of each meeting of the Board shall call such meeting
to order, determine the order of business at such meeting and otherwise preside
over such meeting.
(b) The Secretary shall act as secretary of each meeting of the
Board and keep the minutes thereof, but, in the absence of the Secretary, the
chairman of such meeting shall appoint some other person to act as secretary of
such meeting.
(c) At each meeting of the Board each director shall be entitled to
one vote. Except as otherwise provided in the Certificate of Incorporation or
these By-Laws, a matter submitted to a vote at a meeting of the Board shall have
been approved only if a quorum was present at the time of the vote thereon and a
majority of the directors present at that time shall have voted to approve such
matter.
(d) Any action required or permitted to be taken at any meeting of
the Board may be taken without a meeting if all of the directors consent in
writing to such action and such writing or writings are filed with the minutes
of proceedings of the Board.
SECTION 7. ANNUAL MEETING OF DIRECTORS.
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An annual meeting of directors for the transaction of such business
as may be properly brought before such meeting shall be held immediately
following each annual meeting of stockholders.
SECTION 8. PARTICIPATION IN MEETING BY TELEPHONE.
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One or more directors may participate in a meeting of the Board by
means of conference telephone or similar communications equipment by means of
which all persons participating in such meeting can hear each other at the same
time. Participation in a meeting of the Board by such means shall constitute
presence in person at such meeting.
SECTION 9. COMPENSATION AND EXPENSES OF DIRECTORS.
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Directors shall not be compensated for rendering services as such
but shall be reimbursed for expenses incurred by them in connection with
rendering services as such, unless otherwise determined from time to time by the
Board.
ARTICLE III - COMMITTEES OF THE BOARD
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SECTION 1. REGULAR COMMITTEES.
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The Board may, pursuant to a resolution or resolutions adopted by
an affirmative vote of a majority of the Board, designate one or more committees
of the Board. The members of each such committee shall consist of such directors
(but only such directors) designated by the Board, pursuant to a resolution or
resolutions adopted by an affirmative vote of a majority of the Board. The Board
may, pursuant to a resolution or resolutions adopted by an affirmative vote of a
majority of the Board, designate one or more directors as alternate members of
any committee who may replace any absent or disqualified member of any committee
at any meeting of such committee. Any vacancy on any committee resulting from
death, resignation or any other event or circumstance, which is not filled by an
alternate member, shall be filled by the Board, pursuant to a resolution or
resolutions adopted by an affirmative vote of a majority of the Board. Directors
elected to fill such vacancies shall hold office for the balance of the terms of
the members whose vacancies are so filled. Each committee will report its
actions in the interim between meetings of the Board at the next meeting of the
Board or as otherwise directed by the Board.
SECTION 2. REGULAR COMMITTEE POWERS.
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Any committee of the Board, to the extent (but only to the extent)
provided in a resolution or resolutions adopted by the affirmative vote of a
majority of the Board, (i) shall have and may exercise all of the powers and
authority of the Board and do all of the lawful acts and things which may be
done by the Board in the management of the business and affairs of the
Corporation and (ii) may authorize the seal of the Corporation to be affixed to
all papers which may require it; provided, however, that no such committee shall
have the 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 of the Corporation; amend or repeal these By-Laws or
adopt new By-Laws; or, unless the Certificate of Incorporation, these By-Laws or
resolutions adopted by the affirmative vote of a majority of the Board shall
expressly so provide, declare a dividend, authorize the issuance of shares of
capital stock of the Corporation or adopt a certificate of ownership and merger.
SECTION 3. ADVISORY COMMITTEES.
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The Board or a committee of the Board may designate one or more
advisory committees to report to the Board or a committee of the Board. Each
such advisory committee shall consist of one or more individuals designated by
the Board or the committee of the Board which designated such advisory
committee. Such individuals are not required to be directors. The Board may
designate one or more individuals as alternate members of any advisory committee
who may replace any absent or disqualified member of any advisory committee at
any meeting of such committee. Any absence of any member of any advisory
committee or vacancy on any advisory committee resulting from death, resignation
or any other event or circumstance, which is not filled by an alternate member,
shall be filled only by the Board or the committee of the Board which designated
such advisory committee. Individuals elected to fill such vacancies
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shall hold office for the balance of the terms of the members whose vacancies
are so filled. Each advisory committee will report its actions in the interim
between meetings of the Board or the committee of the Board which designated
such advisory committee at the next meeting of the Board or the committee of the
Board which designated such advisory committee or as otherwise directed by the
Board or the committee of the Board which designated such advisory committee. An
advisory committee shall have none of the powers or authority of the Board or
any committee of the Board.
SECTION 4. PROCEDURES.
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Unless otherwise expressly authorized by the Board, in the
resolution or resolutions designating such committee or advisory committee, the
members of committees or advisory committees shall act only as a committee and
the individual members shall have no power as such. Any member of any committee
or advisory committee may be removed as such at any time as (but only as)
provided in the resolution or resolutions designating such committee or advisory
committee. The term of office of each member of any committee or advisory
committee shall commence at the time of his election and qualification and shall
continue until his successor shall have been duly elected or until his earlier
death, resignation or removal. The Certificate of Incorporation and Sections 4,
5, 6, 7 and 8 of Article II hereof shall apply to committees and advisory
committees and members thereof as if references therein to the Board and
directors were references to such committees and members, respectively.
ARTICLE IV - OFFICERS
---------------------
SECTION 1. OFFICERS.
- -------- --------
The officers of the Corporation shall be a President, one or more
Vice Presidents (one or more of whom may be designated as an Executive Vice
President or a Senior Vice President), a Secretary and a Treasurer. The officers
shall be elected at any time and from time to time by the Board. The Board may
also elect or appoint, in accordance with Section 6 of this Article, such other
officers as it may at any time and from time to time determine. Any of such
offices may be held by the same person.
SECTION 2. PRESIDENT.
- -------- ---------
The President shall be the chief executive officer of the
Corporation and shall, subject to the control of the Board, have general
supervision over and general charge for the business of the Corporation. The
President shall see that all orders of the Board are carried into effect. The
President shall, generally, perform such duties as may from time to time be
assigned to him by these By-Laws or by the Board and is authorized to enter into
contracts and execute and deliver instruments on behalf of the Corporation in
the ordinary course of its business without specific approval of the Board.
SECTION 3. VICE PRESIDENTS.
- -------- ---------------
Each Vice President shall, subject to the control of the Board,
perform all duties as may from time to time be assigned to him by the Board, the
President or these By-Laws. In case
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of the absence of the President, any Vice President designated by the Board
shall perform the duties of the President with all of the powers of, and subject
to all of the restrictions upon, the President.
SECTION 4. TREASURER.
- -------- ---------
The Treasurer shall, subject to the control of the Board, have
charge and custody of and be responsible for all of the funds and securities of
the Corporation, keep full and accurate accounts of assets, liabilities,
receipts, disbursements and other transactions of the Corporation in books
belonging to the Corporation, cause regular audits of such books to be made and
deposit all moneys and other valuable effects in the name of and to the credit
of the Corporation in such banks or other depositories as may be designated by
the Board. The Treasurer shall, subject to the control of the Board, disburse
the funds of the Corporation as ordered by the Board or the other officers of
the Corporation in accordance with these By-Laws, taking proper vouchers for
such disbursements, and shall render to the President and to the Board at its
meetings or whenever he or it may require a statement of all his transactions as
treasurer and an account of the financial condition of the Corporation. In
general, the Treasurer shall, subject to the control of the Board, perform all
of the duties incident to the office of treasurer and such other duties as may
from time to time be assigned to him by the Board, the President or these
By-Laws.
SECTION 5. SECRETARY.
- -------- ---------
The Secretary shall, subject to the control of the Board, act as
secretary of, and keep the minutes of, the proceedings of the Board and the
stockholders in books belonging to the Corporation, give or cause to be given
notice of all meetings of stockholders and directors as required by these
By-Laws, be custodian of the seal of the Corporation, affix the seal, or cause
it to be affixed, to all certificates for shares of capital stock of the
Corporation and to all documents the execution of which on behalf of the
Corporation under its seal shall have been specifically or generally authorized
by the Board, have charge of the stock records of the Corporation and of the
other books, records and papers of the Corporation relating to its organization
as a corporation and see that the reports, statements and other documents
required by law relating to the maintenance of the existence, qualifications and
franchises of the Corporation as a corporation are properly kept or filed. The
Secretary shall, subject to the control of the Board, generally perform all of
the duties incident to the office of secretary and such other duties as may from
time to time be assigned to him by the Board, the President or these By-Laws.
SECTION 6. ADDITIONAL OFFICERS.
- -------- -------------------
The Board may from time to time elect or appoint such other
officers (including, without limitation, assistant officers), employees, agents,
consultants, representatives and advisors of the Corporation as the Board may
deem proper, each of whom shall hold office for such period, have such authority
and perform such duties as the Board or the President pursuant to authority
delegated to him by the Board may from time to time determine.
SECTION 7. REMOVAL.
- -------- -------
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Any officer, employee, agent, consultant, representative or advisor
of the Corporation may be removed at any time by the Board or by the President
pursuant to authority delegated to him by the Board, except that an officer of
the Corporation may be removed or replaced, directly or indirectly (including,
without limitation, removal or replacement effected by reason of election and
qualification of a successor, demotion, relocation, failure to re-elect or
dimunition in duties or compensation), pursuant to (but only pursuant to) a
resolution or resolutions adopted by the affirmative vote of a majority of the
Board.
SECTION 8. RESIGNATIONS.
- -------- ------------
Any officer may resign from his office at any time by giving
written notice of his resignation to the Board, the President or the Secretary.
The resignation of any officer shall take effect at the time of receipt of such
notice by the Board, the President or the Secretary, as the case may be, or at
any later time specified therein and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. No
such resignation shall affect any rights which the Corporation may have under
any agreement with such officer.
SECTION 9. GIVING OF BOND BY OFFICERS.
- -------- --------------------------
All officers of the Corporation, if required to do so by the Board,
shall furnish bonds to the Corporation for the faithful performance of their
duties subject to such penalties and with such conditions and security as the
Board may from time to time require. All expenses of any such bond shall be paid
by the Corporation.
SECTION 10. COMPENSATION OF OFFICERS.
- ---------- ------------------------
Compensation of officers of the Corporation may be fixed from time
to time by the Board or, in the case of officers other than the President, by
the President pursuant to authority delegated to him by the Board.
SECTION 11. TERM OF OFFICE.
- ---------- --------------
Subject to Section 7 of this Article IV, the term of office of each
officer shall commence at the time of his election and qualification and shall
continue until his successor shall have been duly elected and qualified or his
earlier death, resignation or removal.
SECTION 12. VOTING UPON STOCK.
- ---------- -----------------
Except as otherwise determined from time to time by the Board, the
President shall have full power and authority in the name and on behalf of the
Corporation to attend, act and vote at any meeting of stockholders, partners or
owners of any corporation, partnership or other entity in which the Corporation
may hold stock, a partnership interest or another ownership interest and at any
such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such stock or interest which, as the owner thereof,
the Corporation might have possessed and exercised. The Board may from time to
time confer like powers upon any other person or persons and the President may
delegate his powers hereunder to any other officer of the Corporation.
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ARTICLE V - INDEMNIFICATION
---------------------------
SECTION 1. INDEMNIFICATION.
- -------- ---------------
(a) Each person who is or was made a party or is threatened to be
made a party to, or is or was 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 of whom he is the legal representative,
is or was a director, officer, employee or, upon approval of a majority of the
Board of Directors, agent of the Corporation or a subsidiary of the Corporation
or is or was serving at the request of the Corporation as a director, officer,
partner, member, employee, agent or trustee of another corporation (other than a
subsidiary of the Corporation) or of a partnership, joint venture, trust or
other enterprise, including an employee benefit plan, whether the basis of such
proceeding is alleged action in an official capacity as an officer or director
or in any other capacity while so serving, shall be indemnified by the
Corporation for and held harmless by the Corporation from and against, to the
fullest extent authorized by the Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader or greater rights to
indemnification than the Law prior to such amendment permitted the Corporation
to provide), all expenses, liabilities and losses (including attorneys' fees,
judgments, fines, excise taxes, penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith; provided, however, that except as provided herein with respect to
proceedings seeking to enforce rights to indemnification, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board. Such right to indemnification
shall continue as to a person who has ceased to be such an officer, director,
partner, member, employee, agent or trustee and shall inure to the benefit of
his or her heirs, executors and administrators. Such right to indemnification
shall be a contract right and shall include the right of a director, officer,
partner, member, employee, agent or trustee to be paid the expenses (including
costs and attorneys' fees and disbursements) incurred in defending a proceeding
in advance of its final disposition to the fullest extent authorized by the Law,
as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader or greater rights to indemnification than the Law prior to such
amendment permitted the Corporation to provide); provided, however, that, if the
Law requires, the payment of such expenses incurred by a director or officer of
the Corporation in his capacity as a director or officer of the Corporation (and
not in any other capacity in which service was or is rendered by such person
while a director or officer of the Corporation, including, without limitation,
service to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Article or otherwise. Such right to
indemnification and to the payment of expenses may be granted to any other
employee or agent of the Corporation or its subsidiaries if, and to the extent,
authorized by the Board.
(b) If a claim under this Article is not paid in full by the
Corporation within thirty (30) days after a written demand therefor has been
received by the Corporation, the
13
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 also be entitled to be paid the expense of prosecuting such
suit. It shall be a defense to any such suit (other than a suit brought to
enforce a claim for expenses incurred in defending a proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Law for the Corporation to indemnify
the claimant for the amount claimed, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
the Board, independent legal counsel to the Corporation or the stockholders) to
have made a determination prior to the commencement of such suit that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the Law nor an actual
determination by the Corporation (including the Board, independent legal counsel
to the Corporation or the stockholders) that the claimant has not met such
applicable standard of conduct shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
SECTION 2. INDEMNIFICATION NOT EXCLUSIVE.
- -------- -----------------------------
The indemnification of or the payment of expenses for any person
under this Article, or the right of any person to indemnification or payment of
expenses under this Article, shall not limit or restrict in any way the power of
the Corporation to indemnify or pay expenses for such person in any other manner
permitted by law or be deemed exclusive of, or invalidate, any other right which
such person may have or acquire under any law, agreement, vote of stockholders
or disinterested directors, or otherwise.
SECTION 3. SUCCESSORS.
- -------- ----------
The right of any person to indemnification and payment of expenses
under this Article shall continue as to a person after such person shall have
ceased to be such an officer, director, partner, member, employee, agent or
trustee, shall inure to the benefit of the heirs, distributees, executors,
administrators and other legal representatives of such person, shall survive and
not be adversely affected by any modification or repeal of this Article with
respect to any claim or proceeding which arose or transaction, matter, event or
condition which occurred or existed before such modification or repeal and shall
be binding upon all successors of the Corporation.
SECTION 4. INSURANCE.
- -------- ---------
The Corporation may purchase and maintain insurance on behalf of
any person who is or was such an officer, director, partner, member, employee,
agent or trustee against any liability asserted against such person as such an
officer, director, partner, member, employee, agent or trustee or arising out of
such person's status as such an officer, director, partner, member, employee,
agent or trustee, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Article or applicable law.
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SECTION 5. DEFINITION OF CERTAIN TERMS.
- -------- ---------------------------
(a) For purposes of this Article, references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, fiduciary, employee or agent
of the Corporation which imposes duties on, or involves services by, such
director, officer, fiduciary, employee or agent with respect to an employee
benefit plan, its participants or its beneficiaries.
(b) For the purposes of this Article and the Law, a person who
acted in good faith and in a manner such person 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 interest of the
Corporation."
ARTICLE VI - CONTRACTS; BANK ACCOUNTS
-------------------------------------
SECTION 1. EXECUTION OF CONTRACTS.
- -------- ----------------------
Except as provided otherwise in these By-Laws, the Board may from
time to time authorize any officer, employee, agent or representative of the
Corporation, in the name and on behalf of the Corporation, to enter into any
contract or execute and deliver any instrument. Such authorization may be
general or confined to specific instances. Unless so authorized by the Board or
these By-Laws, no officer, employee, agent or representative shall have any
power or authority to bind the Corporation by any contract or engagement, to
pledge its credit or to render it pecuniarily liable for any purpose or to any
amount.
SECTION 2. CHECKS; DRAFTS; NOTES.
- -------- ---------------------
All checks, drafts and other orders for the payment of moneys out
of the funds of the Corporation and all notes or other evidences of indebtedness
of the Corporation shall be signed in the name and on behalf of the Corporation
in the manner authorized from time to time by the Board.
SECTION 3. DEPOSITS.
- -------- --------
All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in the banks, trust
companies or other depositories selected from time to time by the Board or by an
officer, employee, agent or representative of the Corporation to whom such
authority may from time to time be delegated by the Board. For the purpose of
making such a deposit, any officer, employee, agent or representative to whom
authority to make such a deposit is delegated by the Board may endorse, assign
and deliver checks, drafts and other orders for the payment of moneys which are
payable to the order of the Corporation.
ARTICLE VII - SHARES; DIVIDENDS
-------------------------------
SECTION 1. CERTIFICATES.
- -------- ------------
15
Every holder of record of a share or shares of capital stock of the
Corporation then outstanding shall be entitled to a duly signed certificate in
proper form certifying that he is the record holder of such share or shares.
Certificates for shares of capital stock and other securities of the Corporation
shall be issued in such forms as the Board may prescribe. Such certificates
shall be signed by the Chairman of the Board, the President or a Vice President
and by the Secretary or the Treasurer. The seal of the Corporation or a
facsimile thereof shall be affixed on such certificates, and such certificates
shall be countersigned and registered in such manner, if any, as the Board may
prescribe. The signatures of the officers upon such certificates may be
facsimiles. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon any certificate shall have ceased
to be such an officer, transfer agent or registrar before such certificate is
issued, such certificate may be issued with the same effect as if he were such
officer, transfer agent or registrar on the date of issuance of such
certificate.
SECTION 2. TRANSFERS.
- -------- ---------
Transfers of shares of capital stock of the Corporation shall be
made on the records of the Corporation only upon authorization by the record
holder of such shares, in person or by his duly authorized attorney or legal
representative, upon surrender and cancellation of certificates therefor duly
endorsed or accompanied by duly executed stock powers (with such proof of
authenticity of signature as the Corporation or its agent may require) for a
like number of shares, upon payment of all taxes thereon and upon compliance
with any restrictions on transfer thereof. The person in whose name shares of
capital stock of the Corporation stand on the records of the Corporation shall
be deemed the owner of such shares for all purposes as regards the Corporation.
The Board may make such additional rules and regulations and take such action as
it may deem expedient, not inconsistent with the Certificate of Incorporation
and these By-Laws, concerning the issue, transfer and registration of
certificates or the issue of certificates in lieu of certificates claimed to
have been lost, destroyed, stolen or mutilated.
SECTION 3. LOST OR DESTROYED CERTIFICATES.
- -------- ------------------------------
The Corporation may issue a new certificate for shares of capital
stock of the Corporation in order to replace any certificate theretofore issued
by it alleged to have been lost, stolen or destroyed, and the Corporation may
require the holder of the lost, stolen or destroyed certificate, or his legal
representative, to give to the Corporation a bond or other security to indemnify
it against all losses, liabilities and expenses (including attorney's fees and
expenses) incurred in connection with investigating, defending and settling any
claim that may be made against it on account of the alleged loss, theft or
destruction of such certificate or the issuance of such new certificate.
SECTION 4. FRACTIONS OF A SHARE.
- -------- --------------------
The Corporation shall have the authority to issue (but shall not be
obligated, under these By-Laws, to issue) fractions of a share of any class or
series of capital stock of the Corporation. In lieu of issuing a fraction of a
share of any class or series of capital stock of the
16
Corporation, the Corporation may make such equitable payments, or may issue that
number of whole shares of any class or series of capital stock of the
Corporation as may be determined using such equitable method for rounding
fractions to integers, as the Board may determine.
SECTION 5. DIVIDENDS.
- -------- ---------
Subject to the provisions of the Certificate of Incorporation and
to the extent permitted by the Law, the Board may declare dividends on shares of
any class or series of capital stock of the Corporation at such times and in
such amounts as, in its opinion, the conditions of the business of the
Corporation render advisable. Before payment of any dividend or making any
distribution of profits, the Board may set aside out of the surplus or net
profits of the Corporation such sum or sums as the Board may from time to time,
in its absolute discretion, deem proper as a reserve fund to meet contingencies
or for equalizing dividends, for repairing or maintaining any property of the
Corporation or for such other purposes as the Board may from time to time deem
to be in the best interests of the Corporation.
ARTICLE VIII - CORPORATE SEAL
-----------------------------
The Board may adopt a corporate seal of the Corporation which shall
be in such form as the Board may from time to time determine. When authorized by
these By-Laws or by the Board, a facsimile of the corporate seal may be affixed
in lieu of the corporate seal.
ARTICLE IX - FISCAL YEAR
------------------------
The fiscal year of the Corporation shall be fixed from time to time
by the Board.
ARTICLE X - AMENDMENTS
----------------------
These By-Laws, in whole or in part, may be amended or repealed and
new By-Laws, in whole or in part, may be adopted as (but only as) provided in
the Certificate of Incorporation.
* * *
17