EXHIBIT 3.2.0
AMENDED AND RESTATED BY-LAWS
OF
GRAFTECH INTERNATIONAL LTD.
December 13, 2002
TABLE OF CONTENTS
PAGE
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...........................................................................2
Section 5. Notice of Meetings; Waiver............................................................3
Section 6. List of Stockholders..................................................................4
Section 7. Quorum; Manner of Acting..............................................................5
Section 8. Business Transacted...................................................................6
Section 9. Order of Business; Voting.............................................................8
Section 10. Inspectors............................................................................9
ARTICLE II BOARD OF DIRECTORS........................................................................10
Section 1. Powers; Qualifications; Number; Election.............................................10
Section 2. Term of Office of a Director.........................................................10
Section 3. Resignations; Filling of Vacancies...................................................10
Section 4. Meetings of the Board; Notice; Waiver................................................10
Section 5. Quorum; Adjournment..................................................................11
Section 6. Manner of Acting.....................................................................12
Section 7. Annual Meeting of Directors..........................................................12
Section 8. Participation in Meeting by Telephone................................................12
Section 9. Compensation and Expenses of Directors...............................................12
ARTICLE III COMMITTEES OF THE BOARD...................................................................13
Section 1. Regular Committees...................................................................13
Section 2. Regular Committee Powers.............................................................13
Section 3. Advisory Committees..................................................................13
Section 4. Procedures...........................................................................14
ARTICLE IV OFFICERS..................................................................................14
Section 1. Officers.............................................................................14
Section 2. Chief Executive Officer..............................................................15
Section 3. Chairperson..........................................................................15
Section 4. President............................................................................15
Section 5. Chief Officers.......................................................................16
Section 6. General Counsel......................................................................16
Section 7. Vice Presidents......................................................................17
Section 8. Treasurer............................................................................17
Section 9. Secretary............................................................................17
Section 10. Additional Officers..................................................................18
Section 11. Removal..............................................................................18
Section 12. Resignations.........................................................................18
Section 13. Giving of Bond by Officers...........................................................18
Section 14. Compensation of Officers.............................................................18
Section 15. Term of Office.......................................................................18
Section 16. Voting Stock Held by Corporation.....................................................19
ARTICLE V INDEMNIFICATION...........................................................................19
Section 1. Indemnification......................................................................19
Section 2. Indemnification Not Exclusive........................................................20
Section 3. Successors...........................................................................21
Section 4. Insurance............................................................................21
Section 5. Definition of Certain Terms..........................................................22
ARTICLE VI CONTRACTS; BANK ACCOUNTS..................................................................22
Section 1. Execution of Contracts...............................................................22
Section 2. Checks; Drafts; Notes................................................................23
Section 3. Deposits.............................................................................23
ARTICLE VII SHARES; DIVIDENDS.........................................................................23
Section 1. Certificates.........................................................................23
Section 2. Transfers............................................................................23
Section 3. Lost or Destroyed Certificates.......................................................24
Section 4. Fractions of a Share.................................................................24
Section 5. Dividends............................................................................24
ARTICLE VIII CORPORATE SEAL............................................................................24
ARTICLE IX FISCAL YEAR...............................................................................24
ARTICLE X AMENDMENTS................................................................................25
ARTICLE I MEETINGS OF STOCKHOLDERS
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Section 1. Place of Meetings.
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Subject to the next sentence, 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. The Board of Directors (the "Board") may determine
that any or all meetings shall not be held at any place, but shall instead be
held solely by means of remote communications in accordance with such guidelines
and procedures as may be adopted from time to time by the Board or required by
the General Corporation Law of the State of Delaware, as then in effect (the
"Law").
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 (i) at 10:00 a.m., local time, on the second Tuesday of
May in each and every year, if that day is a business day, or, if that day is
not a business day, on the next following day which is a business day or (ii) at
such other hour and date as the Board may from time to time determine, in each
case at such place or by remote communications as may be determined by the
Board. Any annual meeting of stockholders may from time to time be adjourned,
postponed or canceled in accordance with Section 5(c) of this Article I.
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"). In addition (and without limiting the
restrictions or provisions of the Certificate of Incorporation), no such meeting
shall be called or convened, or be deemed to have been duly called or convened,
unless it shall have been called in accordance with these By-Laws.
For a special meeting of stockholders to be duly called or convened, a
person or persons permitted by the Certificate of Incorporation to call a
special meeting of stockholders must give notice to that effect in writing to
the Secretary not more than sixty-five (65) days and not less than thirty five
(35) days before the date of such meeting proposed by such person or persons.
Such notice shall state the purpose or purposes of such meeting and propose a
place, date and hour of such meeting. The Board or, in the absence of a
determination by the Board, the Secretary shall determine the place (or, if so
determined by the Board, the remote communications), date and hour of such
meeting; provided, however, that such meeting shall not be held at a place, date
or hour selected for the purpose of obstructing the purpose or purposes of such
meeting and shall be held on or reasonably promptly (taking into account
disclosure, filing, notice, logistical and other applicable considerations)
after such proposed date. Any special meeting may from time to time be
adjourned, postponed or canceled in accordance with Section 5(c) of this Article
I.
For purposes of these By-Laws, except as otherwise provided in the
relevant provision of these By-Laws, all notices required or permitted to be
given to the Secretary must be given either by personal delivery or United
States mail, postage prepaid, and in each case addressed to the
Secretary at the principal executive office of the Corporation or the registered
office of the Corporation in the State of Delaware. No such notice shall be
deemed to have been duly given until actual receipt at such address.
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 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 executive office or an
officer or agent of the Corporation having custody of the books in which
proceedings of meetings 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.
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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 notice of such meeting to each person
entitled thereto. Except as otherwise provided in the next three (3) paragraphs
of this Section 5(a), such notice shall be given either by personal delivery or
mail. If mailed, such notice shall be deemed to have been duly 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.
Any notice required or permitted to be given by the Corporation under
the Law, the Certificate of Incorporation or these By-Laws to any stockholder
shall be deemed to have been duly given to such stockholder if (i) such notice
is duly given to a stockholder who shares the same address as such stockholder
and (ii) such stockholder shall have consented to the giving of such notice or
notices generally to the stockholder who shares such address. If a stockholder
fails to give written notice to the Secretary, within sixty (60) days after the
Corporation shall have given written notice of its intention to give a notice or
notices generally to such stockholder by giving it or them to a stockholder who
shares the same address as such stockholder as permitted by the Law, objecting
thereto, such stockholder shall be deemed to have so consented. Such stockholder
may revoke such consent at any time by giving written notice to that effect to
the Secretary.
Any notice required or permitted to be given by the Corporation under
the Law, the Certificate of Incorporation or these By-Laws to any stockholder
shall be deemed to have been duly given to such stockholder if (i) such notice
is given by electronic transmission and (ii) such stockholder shall have
consented to the giving of such notice or notices generally to such stockholder
by electronic transmission. Such stockholder may revoke such consent at any time
by giving written notice to that effect to the Secretary. Such stockholder shall
be deemed to have revoked such consent if (i) the Corporation is unable to
deliver by electronic transmission two consecutive notices given by the
Corporation to such stockholder in accordance with such consent and (ii) such
inability becomes known to the Secretary or an Assistant Secretary, the transfer
agent for the class of capital stock of the Corporation held by such stockholder
or some other person responsible for the giving of notice; provided, however,
the inadvertent failure to treat such inability as a revocation shall not affect
the validity of any meeting of stockholders or any action taken thereat. Notice
given to such stockholder by electronic transmission in accordance with these
By-Laws shall be deemed to have been duly given to such stockholder: (i) if by
facsimile telecommunication, when directed to a number at which such stockholder
has consented to receive notice; (ii) if by electronic mail, when directed to an
electronic mail address at which such stockholder has consented to receive
notice; (iii) if by posting on an electronic
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network together with separate notice to such stockholder of such specific
posting, upon the later of such posting or the giving of such separate notice;
and (iv) if by another form of electronic transmission, when directed to such
stockholder.
For purposes of these By-Laws, "electronic transmission" means any form
of communication, not directly involving the physical transmission of paper,
that creates a record that may be retained, retrieved and reviewed by a
recipient thereof and that may be directly reproduced in paper form by such a
recipient through an automated process.
(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 purpose of any meeting of stockholders is
required to be specified in any written waiver of notice of such meeting.
(c) Any meeting of stockholders may be adjourned, postponed or canceled
at any time and from time to time, regardless of whether a quorum is present, by
the Board or the chairman of the meeting for any reason (including, without
limitation, when a quorum is not present at the commencement of such meeting or
where necessary, appropriate or expedient for the proper and orderly conduct of
such meeting or to tabulate any vote, the tabulation of which is necessary for
the continued conduct of such meeting). When a meeting of stockholders is
adjourned to another date, hour or place (or, if adjourned by the Board, remote
communications), it shall not be necessary to give any notice of the adjourned
meeting if the date, hour and place (or, if adjourned by the Board, remote
communications) 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 person entitled to notice of 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 of record held 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 (i) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of such meeting, or (ii) during ordinary
business hours, at the principal executive office of the Corporation. If such
meeting is to be held at a place, 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. If such meeting is to be held solely by
remote communications, such list shall also be produced and kept
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open during the whole time thereof for inspection by any stockholder on a
reasonable accessible electronic network and the information required to gain
access to such list shall be provided with the notice of such meeting. 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 or as provided with respect to meetings consisting solely of
holders of shares of Preferred Stock in the resolution or resolutions providing
for the issuance of such shares, 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 authorized by the Board, stockholders and proxyholders not
physically present at a meeting of stockholders may, by remote communications,
(i) participate in a meeting of stockholders and (ii) be deemed present in
person and vote at a meeting of stockholders, regardless of whether such meeting
is to be held at a place or by remote communications, in each case provided that
the Corporation shall have implemented reasonable measures to (i) verify that
each stockholder or proxyholder deemed present and permitted to vote at such
meeting by remote communications is a stockholder or proxyholder and (ii)
provide such stockholders and proxyholders with a reasonable opportunity to
participate in such meeting and to vote on matters submitted to a vote of
stockholders, including an opportunity to read or hear the proceedings. If any
stockholder or proxyholder votes at such meeting by remote communications, a
record of such vote shall be maintained by the Corporation.
(c) Except as otherwise required by the Law or the Certificate of
Incorporation, as otherwise provided in these By-Laws with respect to the
election of directors, and as otherwise provided with respect to meetings
consisting solely of holders of shares of Preferred Stock in the resolution or
resolutions providing for the issuance of such shares, 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
entitled to vote on such matter shall have voted to approve such matter.
(d) Every stockholder entitled to vote or act at a meeting of
stockholders may authorize another person or persons to vote or act for him by
proxy. Such authorization must be granted by a means expressly permitted by the
Law. Among other means, such authorization may be granted by a proxy (i) in a
written instrument executed by a stockholder or such stockholder's duly
authorized attorney-in-fact or (ii) transmitted by a stockholder or such
stockholder's duly authorized attorney-in-fact by telegram, cablegram or
electronic transmission to a proxyholder or a proxy solicitation firm, proxy
support system or similar agent duly authorized by such proxyholder to receive
such transmission so long as such telegram, cablegram or other electronic
transmission sets forth or is submitted with information from which it can be
determined that the telegram, cablegram or other electronic transmission was
authorized by such
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stockholder or attorney-in-fact. Such proxy must be filed with the Secretary or
such proxyholder, proxy solicitation firm, proxy support agent or similar agent
at or before such meeting. 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 or
such proxyholder, proxy solicitation form, proxy support agent or similar agent
a written instrument revoking such proxy or by filing with the Secretary or such
proxyholder, proxy solicitation form, proxy support agent or similar agent
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 brought in accordance with this Section 8(a). Business
may be brought (i) before a special meeting of stockholders only by the person
or persons calling such meeting as permitted by the Certificate of Incorporation
(which business shall be limited to the matters stated in the notice of such
meeting), (ii) before an annual meeting of stockholders only by or at the
direction of the Board or any other person or persons who could call a special
meeting of stockholders under the limited circumstances expressly permitted by
the Certificate of Incorporation or (iii) before any meeting of stockholders
only by a stockholder who is entitled to vote thereon at such meeting and who
complies with the procedures set forth in this Section 8(a). For business to be
properly brought before an annual meeting of stockholders by a stockholder, such
stockholder must have given timely notice of his intention to do so in writing
to the Secretary.
To be timely, such notice must have been delivered or mailed to, and
received at, the principal executive office of the Corporation not less than one
hundred five (105) days and not more than one hundred thirty-five (135) days
prior to such meeting; provided, however, that if less than one hundred five
(105) days' notice or prior public disclosure of the date of such meeting is
given to stockholders or made, such notice must have been so delivered or
mailed, and received, not later than the close of business on the tenth (10th)
day following the day on which notice or public disclosure of the date of such
meeting is given to stockholders or made (except that this proviso shall not
apply if such meeting is an annual meeting which will be held on the date
specified in clause (i) of Section 2 of this Article I or within thirty (30)
days thereafter).
Such notice must set forth as to each matter such stockholder proposes
to bring before such meeting (i) a brief description (which includes all of the
material aspects thereof) of the business desired to be brought before such
meeting and the reasons for conducting such business at such meeting, (ii) the
name and address, as they appear on the stock records of the Corporation, of
such stockholder (and, if such stockholder beneficially owns shares of capital
stock of the Corporation through a nominee, such nominee), (iii) the classes and
number of shares of each class of capital stock of the Corporation that are
owned beneficially and of record by such stockholder, his affiliates, all groups
of which he is a member and all persons with whom he is acting in concert (in
each case, identifying them), (iv) any material direct or indirect interest of
such stockholder, affiliates, groups or persons in such business and (v) whether
such
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stockholder, affiliates, groups or persons has solicited, is soliciting or
plans to solicit proxies in respect of such matter.
Such notice shall be deemed to have not been timely given if, at any
time after it is first given, the information set forth therein ceases to be
accurate or complete in any material respect unless (i) such stockholder shall
have given a subsequent notice in writing to the Secretary correcting such
inaccurate or incomplete information and (ii) such subsequent notice shall have
been delivered or mailed to, and received at, the principal executive office of
the Corporation within three (3) days after any of such information shall have
become inaccurate or incomplete in any material respect (and, in any event, not
less than one (1) day prior to 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 8(a) 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 8(b). 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 under the limited circumstances expressly
permitted by the Certificate of Incorporation or (ii) by a stockholder who is
entitled to vote for the election of directors at such meeting and who complies
with the procedures set forth in this Section 8(b). For nominations to be
properly made at a meeting by a stockholder, such stockholder must have given
timely notice of his intention to do so in writing to the Secretary.
To be timely, such notice must have been delivered or mailed to, and
received at, the principal executive office of the Corporation not less than one
hundred five (105) days or more than one hundred thirty-five (135) days prior to
such meeting; provided, however, that if less than one hundred five (105) days'
notice or prior public disclosure of the date of such meeting is given to
stockholders or made, such notice must have been so delivered or mailed, and
received, not later than the close of business on the tenth (10th) day following
the day on which notice or public disclosure of the date of such meeting is
given to stockholders or made (except that this proviso shall not apply if such
meeting is an annual meeting which will be held on the date specified in clause
(i) of Section 2 of this Article I or within thirty (30) days thereafter).
Such notice must set forth: (i) as to each individual whom such
stockholder proposes to nominate for election as a director, (a) the name, date
of birth, business address and residential address of such individual, (b) the
principal occupation or employment of such individual for at least the five
years preceding the date of such notice, (c) the classes and number of each
class of the capital stock of the Corporation that are owned beneficially and of
record by such individual, his affiliates, all persons with whom he is acting in
concert and all groups of which he is a member (in each case, identifying them)
and (d) all information relating to such individual that is required to be
disclosed in solicitations of proxies for election of directors pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (including each such individual's written
consent to serve as director if elected); and (ii) as to the stockholder giving
such notice, (A) the name and address, as they appear on the stock records of
the Corporation, of such stockholder (and, if such stockholder beneficially owns
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shares of capital stock of the Corporation through a nominee, such nominee), (B)
the classes and number of shares of each class of capital stock of the
Corporation that are owned beneficially and of record by such stockholder, his
affiliates, all persons acting in concert with him and all groups of which he is
a member (in each case, identifying them), (C) any professional, commercial,
business or familial relationship of such stockholder, affiliates, persons or
groups (in each case, identifying them) to such nominees, his affiliates, any
person acting in concert with him or any group of which he is a member (in each
case, identifying them) and (D) whether such stockholder, affiliates, persons or
groups has solicited, is soliciting or plans to solicit proxies in favor of such
nominees.
Such notice shall be deemed to have not been timely given if, at any
time after it is first given, the information set forth therein ceases to be
accurate or complete in any material respect unless (i) such stockholder shall
have given a subsequent notice in writing to the Secretary correcting such
inaccurate or incomplete information and (ii) such subsequent notice shall have
been delivered or mailed to, and received at, the principal executive office of
the Corporation within three (3) days after any of such information shall have
become inaccurate or incomplete in any material respect (and, in any event, not
less than one (1) day prior to 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 8(b) 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.
(c) For the purposes of this Section 8, "acting in concert" and "group"
shall have the same meanings as they have under the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder.
Section 9. Order of Business; Voting.
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(a) The Chairperson of the Board or, in the absence of the Chairperson
of the Board (including an absence because no Chairperson of the Board shall
have been designated), the most senior executive present, 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. The
chairman of the meeting shall, among other things, announce at such meeting the
opening and closing of the polls for each matter submitted to a vote of
stockholders at 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.
(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
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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 9(d)
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) To the extent (but only to the extent) expressly provided in the
Certificate of Incorporation, 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 thereon, 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.
- --------- -----------
(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 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
9
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
-----------------------------
Section 1. Powers; Qualifications; Number; Election.
- --------- ----------------------------------------
(a) The business and affairs of the Corporation shall be managed by or
under the direction of the Board. Except as otherwise provided in the
Certificate of Incorporation, 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, subject to Article III, 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 (but not less
than three (3) or more than fifteen (15)) 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.
- --------- ----------------------------
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.
- --------- ----------------------------------
(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.
- --------- -------------------------------------
(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 shall be held at such places within or without the
State of Delaware as may be specified in the notices of such meetings.
10
(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
Chairperson of the Board, the most senior executive then serving, the General
Counsel 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 transmission addressed to a director at his usual place of business
(or, if such director (i) has designated some other place to receive notices or
(ii) does not have a usual place of business and has not designated some other
place, such other place or his principal residence, respectively) 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 usual
place of business (or, if such director (i) has designated some other place to
receive notices or (ii) does not have a usual place of business and has not
designated some other place, such other place or his principal residence,
respectively).
(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.
- --------- -------------------
The presence of a majority of the Whole Board (as defined in the
Certificate of Incorporation) 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 date, hour and place. When a meeting of the Board is adjourned to
another date, hour and place, it shall not be necessary to give any notice of
the adjourned meeting if the date, hour 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.
11
Section 6. Manner of Acting.
- --------- ----------------
(a) The Board may designate a Chairperson of the Board, who may be
called Chairman or Chairwoman of the Board, as appropriate. The Chairperson of
the Board shall preside at all meetings of 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 Chairperson of the Board (including an absence
because no Chairperson of the Board shall have been designated), a person
designated by a majority of the directors present at a meeting of the Board
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
(which writings may be executed in counterparts or be different writings) or by
electronic transmission to such action. Such writing or writings or electronic
transmission or transmissions shall be filed with the minutes of proceedings of
the Board.
Section 7. Annual Meeting of Directors.
- --------- ---------------------------
An annual meeting of the Board for the transaction of such business as
may be properly brought before such meeting shall be held promptly following
each annual meeting of stockholders.
Section 8. Participation in Meeting by Telephone.
- --------- -------------------------------------
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.
- --------- --------------------------------------
Directors may be compensated for rendering services as such as
determined from time to time by the Board. Directors shall be reimbursed for
expenses incurred by them in connection with rendering services as such.
12
ARTICLE III COMMITTEES OF THE BOARD
-----------------------------------
Section 1. Regular Committees.
- --------- ------------------
The Board may, pursuant to a resolution or resolutions adopted by an
affirmative vote of a majority of the Whole 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
Whole Board. The Board may, pursuant to a resolution or resolutions adopted by
an affirmative vote of a majority of the Whole 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
(and only by) the Board, pursuant to a resolution or resolutions adopted by an
affirmative vote of a majority of the Whole 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.
- --------- ------------------------
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 Whole 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; except as otherwise provided in
the Certificate of Incorporation, call a meeting of stockholders; 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 Whole 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.
- --------- -------------------
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
13
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 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.
- --------- ----------
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 presence, at any meeting thereof, of a majority of the total
number of members which a committee or advisory committee would have if there
were no vacancies thereon shall be required in order to constitute a quorum for
the transaction of business at such meeting. 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. Except as
otherwise provided in this Article III or in the resolution or resolutions
designating such committee or advisory committee and except for the reference to
presiding at meetings of stockholders in Section 6(a) of Article II, Sections 4,
5, 6, 7 and 8 of Article II 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 Corporation shall have one or more executive officers and a
corporate secretary. Such executive officers may include one or more of the
following positions: a Chairperson (when the Chairperson of the Board is
designated as an officer by the Board); a Chief Executive Officer; a President;
one or more other Chief Officers (such as a Chief Operating Officer, a Chief
Financial Officer or a Chief Information Officer); the General Counsel; one or
more Vice Presidents (one or more of whom may be designated as an Executive Vice
President or a Senior Vice President) and a Treasurer. The corporate secretary
shall be the Secretary.
Executive officers and the Secretary shall be elected by the Board. The
Board may elect executive officers and the Secretary at any time and from time
to time. Any or all of the positions contemplated under this Article IV may be
held by the same person. Unless otherwise designated by the Board or these
By-Laws, officers shall report to other officers as designated by the Chief
Executive Officer or, if the position of Chief Executive Officer is vacant, by
the most senior executive officer then serving.
14
The designation or reference under these By-Laws to an officer as an
executive officer is made solely to distinguish such officers from the corporate
secretary and additional officers described in Section 10 of this Article IV and
does not constitute the designation of such officer as an executive officer
under applicable securities laws, under the rules and regulations of the
Securities and Exchange Commission or for any other purpose.
Section 2. Chief Executive Officer.
- --------- -----------------------
The Chief Executive Officer shall be the principal executive officer of
the Corporation and shall, subject to the control of the Board, have general
authority and exercise general supervision over the business and affairs of the
Corporation. The Chief Executive Officer shall see that all orders of the Board
are carried into effect and shall have responsibility for implementation of the
strategies, plans and policies of the Corporation. The Chief Executive Officer
shall, generally, perform such duties as may from time to time be assigned to
him by the Board or these By-Laws 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. Chairperson.
- --------- -----------
The Chairperson of the Board may be designated as an executive officer
by the Board. Unless so designated, the Chairperson of the Board shall not be an
officer. If so designated, the Chairperson of the Board shall be called, in
these By-Laws, in his capacity as an executive officer, the Chairperson (or
Chairman or Chairwoman, as appropriate) and, in his capacity as a director and
Chairperson of the Board, the Chairperson of the Board.
If so designated, the Chairperson shall be a senior executive officer
of the Corporation and shall, subject to the control of the Board, have general
authority and exercise general supervision over the business and affairs of the
Corporation, with emphasis on strategic direction and initiatives. In the
absence of a Chief Executive Officer and a President, the Chairperson shall see
that all orders of the Board are carried into effect and shall have
responsibility for implementation of the strategies, plans and policies of the
Corporation. The Chairperson shall perform such duties as may from time to time
be assigned to him by the Board or these By-Laws 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, the
Chief Executive Officer or the President.
The Chairperson may be an employee of the Corporation. Unless
designated as an employee by the Board, the Chairperson shall not be an
employee.
Section 4. President.
- --------- ---------
If the position of Chief Executive Officer is occupied, the President
shall, subject to the control of the Board and the Chief Executive Officer, have
general authority and exercise general supervision over the business and affairs
of the Corporation, with emphasis on such matters as may be assigned to him by
the Board or the Chief Executive Officer, and shall report to the Chief
Executive Officer. If the position of Chief Executive Officer is vacant, the
President shall, subject to the control of the Board, have general authority and
exercise general supervision over
15
the business and affairs of the Corporation, shall see that all orders of the
Board are carried into effect and shall have responsibility for implementation
of the strategies, plans and policies of the Corporation. The President shall,
generally, perform such duties as may from time to time be assigned to him or
her by the Board, the Chief Executive Officer or these By-Laws 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 or the Chief Executive Officer.
Section 5. Chief Officers.
- --------- --------------
A Chief Officer shall, subject to the control of the Board and the
Chief Executive Officer (or, if the position of Chief Executive Officer is
vacant, the President), have authority and general supervision over such matters
as may be assigned to him by the Board and the Chief Executive Officer (or, if
the position of Chief Executive Officer is vacant, the President) and shall
report to such other executive officers as may be specified by the Chief
Executive Officer (or, if the position of Chief Executive officer is vacant, the
President).
A Chief Financial Officer shall 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, render to the other executive officers and the Board an
account of the financial condition of the Corporation whenever requested and
have authority and supervision over the Treasurer. If the position of Treasurer
is vacant, the Chief Financial Officer shall perform the duties of the Treasurer
with all powers of, and subject to all of the restrictions upon, the Treasurer.
A Chief Officer shall, generally, perform such duties as may from time
to time be assigned to him by the Board, the Chief Executive Officer (or, if the
position of Chief Executive Officer is vacant, the President), the other
executive officers to whom he reports or these By-Laws and is authorized to
enter into contracts and execute and deliver instruments on behalf of the
Corporation in the ordinary course of its business relating to such matters and
duties without specific approval of the Board, the Chief Executive Officer (or,
if the position of Chief Executive Officer is vacant, the President) or the
other executive officers to whom he reports.
Section 6. General Counsel.
- --------- ---------------
The General Counsel shall, subject to control of the Board, have
general authority and exercise general supervision over the legal and regulatory
affairs of the Corporation (including legal and regulatory compliance) and shall
report to the Board and the Chief Executive Officer (or, if the position of
Chief Executive Officer is vacant, the President). The General Counsel shall see
that all orders of the Board with respect to such affairs are carried into
effect. The General Counsel shall, generally, perform such duties as may from
time to time be assigned to him by the Board, the Chief Executive Officer (or,
if the position of Chief Executive Officer is vacant, the President) or these
By-Laws and is authorized to enter into contracts and execute and deliver
instruments on behalf of the Corporation in the ordinary course of its business
relating to such affairs and duties without specific approval of the Board or
the Chief Executive Officer (or, if the position of Chief Executive officer is
vacant, the President).
16
Section 7. Vice Presidents.
- --------- ---------------
Each Vice President shall, subject to the control of the Board and the
more senior executive officers then serving to whom such Vice President directly
or indirectly reports, perform all duties as may from time to time be assigned
to him by the Board, the more senior executive officers then serving to whom
such Vice President directly or indirectly reports or these By-Laws. In case of
the absence of appropriate more senior executive officers, any Vice President
designated by the Board shall perform the duties of the absent executive
officers with all powers of, and subject to all of the restrictions upon, the
absent executive officers, as applicable.
Section 8. Treasurer.
- --------- ---------
The Treasurer shall, subject to the control of the Board (and, if the
position of Chief Financial Officer is occupied, the Chief Financial Officer),
have charge and custody of and be responsible for all of the funds and
securities of the Corporation and deposit all moneys and other valuable effects
in the name of and to the credit of the Corporation in banks or other
depositories. The Treasurer shall, subject to the control of the Board (and, if
the position of Chief Financial Officer is occupied, the Chief Financial
Officer), disburse the funds of the Corporation as ordered by the Board or the
other executive officers of the Corporation in accordance with these By-Laws,
taking proper vouchers for such disbursements, and shall render to the other
executive officers and to the Board (at its meetings or whenever the Board may
require) a statement of all his transactions as treasurer. If the position of
Chief Financial Officer is vacant, the Treasurer shall also perform the duties
of the Chief Financial Officer to the extent that such duties have not been
assigned by the Board to some other executive officer. In general, the Treasurer
shall, subject to the control of the Board (and, if the position of Chief
Financial Officer is occupied, the Chief Financial Officer), 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 other executive officers or
these By-Laws.
Section 9. 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 executive officers or these
By-Laws.
17
Section 10. Additional Officers.
- --------- -------------------
The Board may at any time and from time to time elect or appoint such
other officers (including, without limitation, assistant executive 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 executive
officers to whom they directly or indirectly report may from time to time
determine.
Section 11. Removal.
- --------- -------
Any officer, assistant, employee, agent, consultant, representative or
advisor of the Corporation may be removed at any time by the Board or an
executive officer to whom he directly or indirectly reports, except that an
executive officer (other than an assistant executive 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
diminution in duties or compensation), pursuant to (but only pursuant to) a
resolution or resolutions adopted by the affirmative vote of a majority of the
Whole Board (excluding, if such officer is also a director, such director).
Section 12. Resignations.
- --------- ------------
Any officer may resign from office at any time by giving written notice
of resignation to the Board, an executive officer to whom he directly or
indirectly reports or the Secretary. The resignation of any officer shall take
effect at the time of receipt of such notice by the Board, such an executive
officer or the Secretary 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 13. 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 14. Compensation of Officers.
- --------- ------------------------
Compensation of officers of the Corporation may be fixed at any time
and from time to time by the Board or, in the case of officers other than the
Chief Executive Officer, by the Chief Executive Officer pursuant to authority
delegated to him by the Board.
Section 15. Term of Office.
- --------- --------------
Subject to Sections 11 and 12 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.
18
Section 16. Voting Stock Held by Corporation.
- --------- --------------------------------
Except as otherwise determined from time to time by the Board, the
Chief Executive Officer (or, if the position of Chief Executive Officer is
vacant, 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 Chief Executive Officer and the President may delegate his
powers under this Section 16 to any other officer of the Corporation.
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 (including, without limitation, involvement as
a witness) in, any action, suit or proceeding, whether civil (including, without
limitation, arbitral), 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 or officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
partner, member, manager, employee, agent or trustee of another corporation or
of a partnership, joint venture, limited liability company, trust or other
entity or enterprise (including, without limitation, a direct or indirect
subsidiary of the Corporation and an employee benefit plan of the Corporation or
any of its subsidiaries), whether the basis of such proceeding is alleged action
or inaction 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 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.
(b) Such right to indemnification shall include the right of such a
director, officer, partner, member, manager, employee, agent or trustee to be
paid the expenses incurred in preparing for, participating (including, without
limitation, participation as a witness) in, defending and settling or otherwise
resolving a proceeding (collectively called the "defense of 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
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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 by the Corporation. Such an
undertaking shall not and shall not be deemed to require repayment if such
director or officer is entitled to be indemnified by the Corporation for any
reason or on any basis. No collateral shall be required to secure performance by
such person of his obligations under such an undertaking. An undertaking
delivered to the Corporation shall be sufficient regardless of the prospective
ability of the person delivering such undertaking to perform his obligations
thereunder.
(c) Such right to indemnification may be granted to any other employee
or agent of the Corporation or its subsidiaries if, and to the extent,
authorized by the Board, the Chief Executive Officer (or, if the position of
Chief Executive Officer is vacant, the President) or the General Counsel.
(d) If a claim under this Article V is not paid in full by the
Corporation within thirty (30) days after a written demand 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 also be entitled to be paid
all expenses 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 the
defense of 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 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
such suit or create a presumption in such suit that the claimant has not met the
applicable standard of conduct.
Section 2. Indemnification Not Exclusive.
- --------- -----------------------------
The indemnification of any person under this Article V, or the right of
any person to indemnification under this Article V, 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.
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Section 3. Successors.
- --------- ----------
The right of any person to indemnification under this Article V shall
(i) survive and continue as to a person who has ceased to be such an officer,
director, partner, member, manager, employee, agent or trustee, (ii) inure to
the benefit of the heirs, distributees, beneficiaries, executors, administrators
and other legal representatives of such person, (iii) not be impaired,
eliminated or otherwise adversely affected after such cessation due to any
action or inaction by the Corporation, the Board or the stockholders (including,
without limitation, amendment of these By-Laws (including, without limitation, a
modification or repeal of this Article V) or the Certificate of Incorporation or
a merger, consolidation, recapitalization, reorganization or sale of assets of
the Corporation or any of its subsidiaries), with respect to any claim,
proceeding or suit which arose or transaction, matter, event or condition which
occurred or existed before such cessation, (iv) be a contract right, enforceable
as such, and (v) be binding upon all successors of the Corporation.
For purposes of this Article V, a "successor" of the Corporation
includes (i) any person who acquires a majority of the assets or businesses of
the Corporation and its subsidiaries (on a consolidated basis) in a single
transaction or a series of related transactions, (ii) any person with whom the
Corporation merges or consolidates (unless the Corporation is the survivor of
such merger or consolidation) and (iii) any person who is the ultimate parent of
any person with whom the Corporation merges or consolidates where the
Corporation is the survivor of such merger or consolidation (unless the person
with whom the Corporation merges or consolidates was, prior to such merger or
consolidation, more creditworthy and had a larger market capitalization than the
Corporation prior to such merger or consolidation). For purposes of the
preceding sentence, "merger," "consolidation" and like terms shall include
binding share exchanges and similar transactions.
The Board shall, as a condition precedent to any transaction described
in the preceding paragraph, require the successor to irrevocably and
unconditionally assume the obligations contemplated by this Article V.
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, manager,
employee, agent or trustee against any liability asserted against such person as
such an officer, director, partner, member, manager, employee, agent or trustee
or arising out of such person's status as such an officer, director, partner,
member, manager, 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 V or applicable law.
The Corporation shall not, without prior approval of the Board (and, as
to each director and executive officer of the Corporation who ceased to be a
director or executive officer within three (3) years prior to the effective date
thereof, the prior approval of each such director and executive officer), reduce
or eliminate in any material respect, or fail to renew, any such insurance then
in effect. A reduction in insurance includes, without limitation, an increase in
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deductibles or co-payments, a reduction in the aggregate amount of insurance or
an addition of exclusions from coverage or other reduction in scope of coverage.
Section 5. Definition of Certain Terms.
- --------- ---------------------------
(a) For purposes of this Article V: references to "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit plan;
any service as a director, officer, fiduciary, employee or agent of the
Corporation or any of its subsidiaries which imposes duties on, or involves
services by, such director, officer, fiduciary, employee or agent with respect
to an employee benefit plan, its trusts, its participants or its beneficiaries
(including, without limitation, service as a member of any committee that
manages, administers or performs similar functions with respect to any employee
benefit plan, trust, participant or beneficiary) shall be deemed to be service
covered by Section 1(a) of this Article V; references to "indemnification" and
like terms shall include holding harmless and payment of expenses as provided
herein; and references to "proceedings" included all related appeals of any
kind.
(b) For the purposes of this Article V 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, its
trusts, its participants or its beneficiaries shall be deemed to have acted in a
manner "not opposed to the best interest of the Corporation."
(c) For the purposes of this Article V: references to "expenses" shall
include all attorneys' fees, retainers, court costs, transcript costs, expert
fees, witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees and other disbursements
or expenses of the types customarily incurred in connection with the defense of
a proceeding or prosecution of a suit, all costs relating to any appeal bond and
all federal, state, local or foreign taxes, charges, duties and similar imposts
and assessments incurred or assessed as a result of the actual or deemed receipt
of any expenses under this Article V; and references to "liabilities and losses"
shall include judgments, fines, amounts paid or to be paid in settlement, and
assessments, and all federal, state, local or foreign taxes, charges, duties and
similar imposts and assessments incurred or assessed as a result of the actual
or deemed receipt of any liabilities or losses under this Article V.
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.
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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 or these By-Laws.
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 or these By-Laws. 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 or these By-Laws 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.
- --------- ------------
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 Chairperson of the Board, the Chief Executive Officer,
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,
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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 Corporation, the
Corporation may (i) make such payments or (ii) issue that number of whole shares
of such class or series of capital stock of the Corporation, in each case as may
be determined using such equitable method as any officer of the Corporation or
the Board may select or the Certificate of Incorporation or the Law may require.
Section 5. Dividends.
- --------- ---------
Subject to the provisions of the Certificate of Incorporation and to
the extent permitted by the Law, the Board may declare and the Corporation may
pay dividends on shares of any class or series of capital stock of the
Corporation at such times and in such amounts as, in the opinion of the Board,
the conditions of the business of the Corporation render advisable. Before
declaration or payment of any dividend or making of any distribution, 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.
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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.
* * *