EXHIBIT 3.65(B)
------------------
ANNEX "A"
------------------
AMENDED AND RESTATED BYLAWS
OF
AEI HOLDING COMPANY, INC.
I certify that the following Bylaws, consisting of fifteen (15) pages, each
of which I have initialed for identification, are the Amended and Restated
Bylaws adopted by the Shareholders of AEI Holding Company, Inc. (the
"Corporation") by a Written Action by Shareholders in Lieu of Meeting, dated
June ____, 1998.
/s/ JOHN LYNCH
________________________________________
John Lynch, Secretary
AMENDED AND RESTATED BYLAWS
OF
AEI HOLDING COMPANY, INC.
ARTICLE I
---------
Offices
-------
1. Business Offices. The Corporation may have one or more offices at
----------------
such place or places as the Board of Directors may from time to time determine
or as the business of the Corporation may require.
2. Principal Office. The initial principal office of the Corporation
----------------
shall be as set forth in the Articles of Incorporation. The Board of Directors,
from time to time, may change the principal office of the Corporation.
3. Registered Office. The registered office of the Corporation shall be
-----------------
as set forth in the Articles of Incorporation, unless changed as provided by the
provisions of the Delaware General Corporation Law, as it may be amended from
time to time (the "DGCL").
ARTICLE II
----------
Shareholders' Meetings
----------------------
1. Annual Meetings. The annual meeting of shareholders for the election
---------------
of directors to succeed those whose terms expire and for the transaction of such
other business as may come before the meeting shall be held each year on March
15, at 10:00 a.m., local time at the place of the meeting fixed by the Board of
Directors, or, if not so fixed, at the principal office designated in the
Articles of Incorporation. If the day so fixed for such annual meeting shall not
be a business day or shall be a legal holiday at the place of the meeting, then
such meeting shall be held on the next succeeding business day at the same hour.
2. Special Meetings. Special meetings of shareholders for any purpose or
----------------
purposes, unless otherwise prescribed by statute or by the Articles of
Incorporation, may be called at any time by the President or by the Board of
Directors and shall be called by the President or the Secretary upon the request
(which shall state the purpose or purposes therefor) of a majority of the Board
of Directors or of the holders of shares representing not less than twenty
percent (20%) of all votes entitled to be cast on any issue proposed to be
considered at the meeting. The record date for determining the shareholders
entitled to demand a special meeting is the date of the earliest of any of the
demands pursuant to which the meeting is called, or the date that is 60 days
before the date the first of which demands is received, whichever is later.
Business transacted at any special meeting of shareholders shall be limited to
the purpose or purposes stated in the notice.
3. Place of Special Meetings. Special meetings of shareholders shall be
-------------------------
held at such place or places, as may be determined by the Board of Directors and
designated in the notice of the
1
meeting, or, if no place is so determined and designated in the notice, the
place of the shareholders' meetings shall be the principal office of the
Corporation.
4. Notice of Meetings. Not less than 14 nor more than 60 days prior to
------------------
each annual or special meeting of shareholders, written notice of the meeting
shall be delivered to each shareholder entitled to vote at such meeting;
provided, however, that if the authorized shares of the Corporation are proposed
to be increased, at least 30 days' notice in like manner shall be given; and
provided, further, that if other or different notice is required by the DGCL,
the provisions of the DGCL shall govern. Notices shall be delivered by i)
personal delivery, ii) facsimile transmission, iii) registered or certified
mail, postage prepaid, return receipt requested; or (iv) nationally recognized
overnight or other express courier services. All notices shall be effective and
shall be deemed delivered (i) if by personal delivery, on the date of delivery
if delivered during normal business hours of the recipient, and if not delivered
during such normal business hours, on the next Business Day following delivery;
(ii) if by facsimile transmission, on the next Business Day following dispatch
of such facsimile; (iii) if by courier service, on the third Business Day after
dispatch of a notice addressed to the shareholder at the address of such
shareholder appearing in the stock transfer books of the Corporation and (iv) if
by mail, on the date of receipt. If three (3) successive letters mailed to the
last known address of any shareholder of record are returned as undeliverable,
no further notices to such shareholder shall be necessary until another address
for such shareholder is made known to the Corporation. The notice of any meeting
shall state the place, day and hour of the meeting. The notice of a special
meeting shall, in addition, state the meeting's purposes.
5. Shareholders List. A complete record of the shareholders entitled to
-----------------
vote at such meeting (or an adjourned meeting described in Section 9 of this
Article II) arranged by voting groups and, within each voting group, in
alphabetical order, showing the address of each shareholder and the number of
shares registered in the name of each, shall be prepared by the officer or agent
of the Corporation who has charge of the stock transfer books of the
Corporation. The shareholders list shall be available for inspection by any
shareholder beginning on the earlier of ten (10) days before the meeting or two
(2) days after notice is given and continuing through the meeting and any
adjournment thereof, subject to the requirements of the DGCL. Such record shall
also be produced and kept at the time and place of the meeting during the whole
time thereof and subject to inspection for any purpose germane to the meeting by
any shareholder who may be present.
6. Organization. The President or, in the President's absence, any Vice
------------
President shall call meetings of shareholders to order and act as chairperson of
such meetings. In the absence of said officers, any shareholder entitled to vote
at the meeting, or any proxy of any such shareholder, may call the meeting to
order and a chairperson shall be elected by a majority of the shareholders
present and entitled to vote at the meeting. The Secretary or any Assistant
Secretary of the Corporation or any person appointed by the chairperson may act
as secretary of such meetings.
7. Agenda and Procedure. The Board of Directors shall have the
--------------------
responsibility of establishing an agenda for each meeting of shareholders,
subject to the rights of shareholders to raise matters for consideration which
may otherwise properly be brought before the meeting although not
2
included within the agenda. The chairperson shall be charged with the orderly
conduct of all meetings of shareholders.
8. Quorum. Shares entitled to vote as a separate voting group may take
------
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. A majority of the votes entitled to be cast on the
matter by the voting group constitutes a quorum of that voting group for action
on that matter. In the absence of a quorum at any shareholder's meeting, a
majority of the shareholders present in person or represented by proxy and
entitled to vote at the meeting may adjourn the meeting from time to time for a
period not to exceed 120 days from the original date of the meeting without
further notice (except as provided in Section 9 of this Article II) until a
quorum shall be present or represented.
9. Adjournment. When a meeting is for any reason adjourned to another
-----------
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken.
At the adjourned meeting, any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than 120 days
from the date of the original meeting, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each shareholder of record entitled to vote at the meeting.
10. Voting.
------
a. Except as provided in the Articles of Incorporation or the DGCL,
at every meeting of shareholders, or with respect to corporate action which may
be taken without a meeting, every shareholder shall be entitled to one vote for
each share of stock having voting power held of record by such shareholder on
the record date designated therefor pursuant to Section 3 of Article X of these
Bylaws (or for the record date established pursuant to statute in the absence of
such designation); provided, however, that the cumulative system of voting for
the election of directors shall not be allowed.
b. A shareholder may vote the shareholder's shares in person or by
proxy. A person may appoint a proxy in person or through an attorney-in-fact
and such appointment may be transmitted by telegram, teletype, or other written
statement of appointment permitted by the DGCL. The appointment is effective for
eleven months unless a different period is expressly provided in the appointment
form. An appointment shall be revocable unless coupled with an interest
including the appointment of any of the following: (1) a pledgee; (2) a person
who purchased or agreed to purchase the shares; (3) a creditor of the
Corporation who extended credit to the Corporation under terms requiring the
appointment; (4) an employee of the Corporation whose employment contract
requires the appointment; or (5) a party to a voting trust agreement.
c. The voting rights of fiduciaries, beneficiaries, pledgors,
pledgees and joint, common and other multiple owners of shares of stock shall be
as provided from time to time by the DGCL and any other applicable law.
3
d. Shares of the Corporation held of record by another corporation
that are entitled to vote may be voted by such officer, agent or proxy as the
bylaws of such other corporation may prescribe, or, in the absence of such
provision, as the Board of Directors of such corporation may determine.
e. When a quorum is present at any meeting of shareholders, action
on a matter by a voting group shall be approved if the shares entitled to vote
are cast so that the votes cast within the voting group favoring the action
exceed the votes cast opposing the action, unless the question is one upon which
by express provision of a statute, or the Articles of Incorporation, or these
Bylaws, a different vote is required, in which case such express provision shall
govern and control the decision on such question.
11. Inspectors. The chairperson of the meeting may at any time appoint
----------
two or more inspectors to serve at a meeting of the shareholders. Such
inspectors shall decide upon the qualifications of voters, including the
validity of proxies, accept and count the votes for and against the questions
presented, report the results of such votes, and subscribe and deliver to the
secretary of the meeting a certificate stating the number of shares of stock
issued and outstanding and entitled to vote thereon and the number of shares
voted for and against the questions presented. The voting inspectors need not be
shareholders of the Corporation, and any director or officer of the Corporation
may be an inspector on any question other than a vote for or against such
director's or officer's election to any position with the Corporation or on any
other question in which such officer or director may be directly interested.
12. Meeting by Telecommunication. Any or all of the shareholders may
----------------------------
participate in any annual or special shareholders' meeting by, or the meeting
may be conducted through the use of, any means of communication by which all
persons participating in the meeting may hear each other during the meeting.
Any shareholder participating in a meeting by any such means of communication is
deemed to be present in person at the meeting.
ARTICLE III
-----------
Board of Directors
------------------
1. Election and Tenure. The business and affairs of the Corporation
-------------------
shall be managed by a Board of Directors who shall be elected at the annual
meetings of shareholders or special meetings called for that purpose. In an
election of directors, the number of candidates equaling the number of directors
to be elected having the highest number of votes cast in favor of their election
shall be elected to the Board of Directors. Each director shall be elected to
serve and to hold office until the next succeeding annual meeting and until such
director's successor shall be elected and shall qualify, or until such
director's earlier death, resignation or removal.
2. Number and Qualification. The exact number of Directors may be fixed,
------------------------
increased or decreased from time to time by a resolution adopted by the majority
vote of a quorum of shareholders who are present in person or by proxy at a
meeting held to elect Directors. Directors must be natural persons at least
eighteen years of age but need not be shareholders.
4
3. Ex-officio Directors. The Board of Directors may, from time to time,
---------------------
appoint additional persons to serve as ex-officio directors of the Corporation.
Such ex-officio directors may be present at, and participate in, meetings of the
Board of Directors, but shall have no voting rights, shall not be entitled to
serve on any executive or other committee of the Board of Directors, and shall
not be considered in the calculation of a quorum pursuant to Section 9 of this
Article III. Failure to give notice to any ex-officio director pursuant to
Section 8 of this Article III shall not affect the validity of any action taken
by the Board of Directors.
4. Annual Meetings. On the same day each year as, and immediately
---------------
following, the annual shareholders' meeting, the Board of Directors shall meet
for the purpose of organization, election of officers and the transaction of any
other business.
5. Regular Meetings. Regular meetings of the Board of Directors shall be
----------------
held on the 15th day of February, May, August and November, or the first
business day following each such date, at such time or times as may be
determined by the Board of Directors and specified in the notice of such
meetings.
6. Special Meetings. Special meetings may be called by the President or
----------------
any shareholder owning greater than twenty-five percent (25%) of the total
outstanding shares of the Corporation, and shall be called by the President or
the Secretary on the written request of any two directors.
7. Place of Meetings. Except as specifically set forth otherwise herein,
-----------------
any meeting of the Board of Directors may be held at such place or places either
as shall from time to time be determined by the Board of Directors and as shall
be designated in the notice of the meeting.
8. Notice of Meetings. Notice of each meeting of directors, whether
------------------
annual, regular or special, shall be given to each director. If such notice is
given either (a) by personally delivering written notice to a director or (b) by
personally telephoning such director, it shall be so given at least ten (10)
days prior to the meeting. If such notice is given either (1) by depositing a
written notice by overnight courier service, postage prepaid, or (2) by
facsimile transmission, in all cases directed to such director at that person's
residence or place of business, it shall be so given at least fourteen (14) days
prior to the meeting. The notice shall state the place, date and hour thereof,
but need not, unless otherwise required by the DGCL, state the purposes of the
meeting.
9. Quorum. A majority of the number of directors fixed by or in
------
accordance with Section 2 of this Article III that are entitled to vote shall
constitute a quorum at all meetings of the Board of Directors. The vote of a
majority of the directors present and entitled to vote at a meeting at which a
quorum is present shall be the act of the Board of Directors, unless the express
provision of a statute, the Articles of Incorporation, or these Bylaws requires
a different vote, in which case such express provision shall govern and control.
In the absence of a quorum at any such meeting, a majority of the directors
present and entitled to vote may adjourn the meeting from time to time without
further notice, other than announcement at the meeting, until a quorum shall be
present.
5
10. Organization, Agenda and Procedure. The directors shall choose a
----------------------------------
Chairman of the Board to preside over the meetings of the Board of Directors.
The Secretary, any Assistant Secretary, or any other person appointed by the
Chairman of the Board shall act as secretary of each meeting of the Board of
Directors. The agenda of and procedure for such meetings shall be as determined
by the Board of Directors. All proposed agenda topics and documents to be
reviewed at the annual meetings and the regular meetings shall be delivered to
each director at least fourteen (14) days prior to any such meeting.
11. Resignation. Any director of the Corporation may resign at any time
-----------
by giving written notice of such director's resignation to the Board of
Directors, the President, any Vice President or the Secretary of the
Corporation. Such resignation shall take effect at the date of receipt of such
notice 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, unless it so provides. A director who resigns may deliver to the
Secretary of State for filing a statement to that effect.
12. Removal. Except as otherwise provided in the Articles of
-------
Incorporation or in these Bylaws, any director may be removed, either with or
without cause, at any time, by the affirmative vote of the holders of a majority
of the issued and outstanding shares of stock entitled to vote for the election
of directors of the Corporation at a special meeting of the shareholders called
and held for such purpose; provided, however, that if less than the entire Board
of Directors is to be removed, and if cumulative voting of shares in the
election of directors is allowed, a director may not be removed if the votes
entitled to be cast against such director's removal would be sufficient to elect
such director if such votes were cumulatively voted for such director at an
election of the entire Board of Directors. A vacancy in the Board of Directors
caused by any such removal may be filled by the Corporation's shareholders at
such meeting or, if the shareholders at such meeting shall fail to fill such
vacancy, by the Board of Directors as provided in Section 12 of this Article
III.
13. Vacancies. Except as provided in Section 11 of this Article III, any
---------
vacancy occurring for any reason in the Board of Directors may be filled by the
affirmative vote of a majority of the directors then in office, though less than
a quorum of the Board of Directors, or by an election by the shareholders. Any
directorship to be filled by reason of an increase in the number of directors
shall be filled by the affirmative vote of a majority of the directors then in
office or by an election by the shareholders. A director elected to fill a
vacancy shall be elected for the unexpired term of such director's predecessor
in office and shall hold office until the expiration of such term and until a
successor shall be elected and shall qualify or until such director's earlier
death, resignation or removal. A director chosen to fill a position resulting
from an increase in the number of directors shall hold office until the next
annual meeting of shareholders and until a successor shall be elected and shall
qualify, or until such director's earlier death, resignation or removal. If the
vacant directorship was held by a director elected by a voting group of
shareholders, the vacancy shall be filled by either the vote of the holders of
shares of that voting group entitled to fill such vacancy or the majority vote
of any remaining Directors elected by that voting group.
6
14. Executive and Other Committees. The Board of Directors, by
------------------------------
resolution adopted by a majority of the number of directors fixed by or in
accordance with Section 2 of this Article III, may designate from among its
members an executive committee and one or more other committees each of which,
to the extent provided in the resolution and except as otherwise prescribed by
statute, shall have and may exercise all of the authority of the Board of
Directors in the management of the Corporation. Rules governing the procedures
for meetings of executive or other committees shall be as established by the
Board of Directors or by such committee. Notwithstanding the foregoing, no
committee shall: (a) authorize distributions; (b) approve or propose to
shareholders action that the DGCL requires to be approved by shareholders; (c)
fill vacancies on the Board of Directors or on any of its committees; (d) amend
the Articles of Incorporation; (e) adopt, amend, or repeal these Bylaws; (f)
approve a plan of merger not requiring shareholder approval; (g) authorize or
approve reacquisition of shares, except according to a formula or method
prescribed by the Board of Directors; or (h) authorize or approve the issuance
or sale of shares, or a contract for the sale of shares, or determine the
designation and relative rights, preferences, and limitations of a class or
series of shares; except that the Board of Directors may authorize a committee
or an officer to do so within limits specifically prescribed by the Board of
Directors.
15. Compensation of Directors. Each director shall be allowed such amount
-------------------------
per annum or such fixed sum for attendance at meetings of the Board of
Directors, executive or other committees, as may be from time to time fixed by
resolution of the Board of Directors, together with reimbursement for the
reasonable and necessary expenses incurred by such director in connection with
the performance of such director's duties (including, but not limited to,
expenses incurred in attending meetings of the Board of Directors). Nothing
herein contained shall be construed to preclude any director from serving the
Corporation in any other capacity or any of its subsidiaries in any other
capacity and receiving proper compensation therefor.
7
ARTICLE IV
----------
Waiver of Notice by Shareholders and Directors and Action
of Shareholders and Directors by Consent
----------------------------------------
1. Waiver of Notice. A shareholder may waive any notice required by the
----------------
DGCL or by the Articles of Incorporation or these Bylaws, and a director may
waive any notice of a directors meeting, whether before or after the date or
time stated in the notice as the date or time when any action will occur or has
occurred. The waiver shall be in writing, be signed by the shareholder or
director entitled to the notice, and be delivered to the Corporation for
inclusion in the minutes or filing with the corporate records, but such delivery
and filing shall not be conditions of the effectiveness of the waiver.
Attendance of a shareholder or the attendance or participation by a director at
a meeting (a) waives objection to lack of required notice or defective notice of
the meeting, unless the shareholder at the beginning of the meeting, or the
director, at the beginning of the meeting or promptly upon his or her later
arrival, objects to holding the meeting or transacting business at the meeting
because of lack of notice or defective notice, and, in the case of a director,
does not thereafter vote for or assent to action taken at the meeting, and (b)
waives objection to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice, or of a
matter without special notice required by the DGCL, the Articles of
Incorporation, or these Bylaws, unless the shareholder or director objects to
considering the matter when it is presented and, in the case of a director, does
not thereafter vote for or assent to action taken at the meeting with respect to
such purpose.
2. Action Without a Meeting.
------------------------
a. Unless the Corporation's Certificate of Incorporation requires
that such action be taken at a shareholders' meeting, any action required or
allowed to be taken at an annual or special meeting of the shareholders of the
Corporation may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of shareholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. Such action shall be effective as of the time the last
writing necessary to effect the action is received by the Corporation, unless
all writings necessary to effect the action specify a later time, in which case
the later time shall be the time of the action. The record date for determining
shareholders entitled to take action without a meeting is the date upon which a
writing upon which the action is to be taken is first received by the
Corporation. Prompt notice of the taking of corporate action without a meeting
by less than unanimous written consent shall be given to those shareholders who
have not consented in writing.
b. Unless otherwise restricted by the Corporation's Certificate of
Incorporation, any action required or permitted to be taken at any meeting of
the board of directors, or any committee thereof may be taken without a meeting
if all members of the board or committee, as the
8
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee. Such action shall be
effective as of the time the last director signs a writing describing the action
taken unless before such time the Secretary has received a written revocation of
the consent of any other director, and any action so taken shall be effective at
the time taken unless the directors specify a different effective time.
3. Meetings by Telecommunication. One or more members of the Board of
-----------------------------
Directors or any committee designated by the Board of Directors may hold or
participate in a meeting of the Board of Directors or such committee through the
use of any means of communication by which all persons participating can hear
each other at the same time. Any director participating in a meeting by any
such means of communication is deemed to be present in person at the meeting.
ARTICLE V
---------
Officers
--------
1. Election and Tenure. The officers of the Corporation shall consist of
-------------------
a President, a Secretary and Treasurer, each of whom shall be appointed annually
by the Board of Directors. The Board of Directors may also designate and
appoint such other officers and assistant officers as may be deemed necessary.
The Board of Directors may delegate to any such officer the power to appoint or
remove subordinate officers, agents or employees. Any two or more offices may
be held by the same person. Each officer so appointed shall continue in office
until a successor shall be appointed and shall qualify, or until the officer's
earlier death, resignation or removal. Each officer shall be a natural person
who is eighteen years of age or older.
2. Resignation, Removal and Vacancies. Any officer may resign at any
----------------------------------
time by giving written notice of resignation to the Board of Directors or the
President. Such resignation shall take effect when the notice is received by the
Corporation unless the notice specifies a later date, and acceptance of the
resignation shall not be necessary to render such resignation effective. Any
officer may at any time be removed by the affirmative vote of a majority of the
number of directors fixed by or in accordance with Section 2 of Article III of
these Bylaws, or by an executive committee of the Board of Directors. If any
office becomes vacant for any reason, the vacancy may be filled by the Board of
Directors. An officer appointed to fill a vacancy shall be appointed for the
unexpired term of such officer's predecessor in office and shall continue in
office until a successor shall be elected or appointed and shall qualify, or
until such officer's earlier death, resignation or removal. The appointment of
an officer shall not itself create contract rights in favor of the officer, and
the removal of an officer does not affect the officer's contract rights, if any,
with the Corporation and the resignation of an officer does not affect the
Corporation's contract rights, if any, with the officer.
3. Chairman of the Board. The Chairman of the Board shall preside over
---------------------
the meetings of the Board of Directors and have such powers and responsibilities
as are incident thereto. However, the Chairman of the Board shall not have
responsibility for the day-to-day business operations of the Corporation.
9
4. President. The President shall be the chief executive officer of the
---------
Corporation. The President shall (i) preside at meetings of the shareholders;
(ii) have general and active management of the business of the Corporation, and
preside over the day-to-day business operations of the Corporation; (iii) see
that all orders and resolutions of the Board of Directors are carried into
effect; and (iv) perform all duties as may from time to time be assigned by the
Board of Directors.
5. Chief Financial Officer. The Chief Financial Officer shall perform
-----------------------
such duties and shall have such powers as may from time to time be assigned by
the Board of Directors or the President, and shall perform such duties and have
such powers and responsibilities as are incident to the office of Chief
Financial Officer. In addition, the Chief Financial Officer shall have, along
with the President, responsibility for the day-to-day business operations of the
Corporation.
6. Vice Presidents. The Vice Presidents, if any, shall perform such
---------------
duties and possess such powers as from time to time may be assigned to them by
the Board of Directors or the President. In the absence of the President or in
the event of the inability or refusal of the President to act, the Vice
President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated by the Board of Directors, or in the absence
of any designation, then in the order of the election or appointment of the Vice
Presidents) shall perform the duties of the President and when so performing
shall have all the powers of and be subject to all the restrictions upon the
President.
7. Secretary. The Secretary shall perform such duties and shall have
---------
such powers as may from time to time be assigned by the Board of Directors or
the President. In addition, the Secretary shall perform such duties and have
such powers as are incident to the office of Secretary including, without
limitation, the duty and power to give notice of all meetings of shareholders
and the Board of Directors, the preparation and maintenance of minutes of the
directors' and shareholders' meetings and other records and information required
to be kept by the Corporation under Article XI and for authenticating records of
the Corporation, and to be custodian of the corporate seal and to affix and
attest to the same on documents, the execution of which on behalf of the
Corporation is authorized by these Bylaws or by the action of the Board of
Directors.
8. Treasurer. The Treasurer shall perform such duties and shall have
---------
such powers as may from time to time be assigned by the Board of Directors or
the President. In addition, the Treasurer shall perform such duties and have
such powers as are incident to the office of Treasurer including, without
limitation, the duty and power to keep and be responsible for all funds and
securities of the Corporation, to deposit funds of the Corporation in
depositories selected in accordance with these Bylaws, to disburse such funds as
ordered by the Board of Directors, making proper accounts thereof, and to render
as required by the Board of Directors statements of all such transactions as
Treasurer and of the financial condition of the Corporation.
9. Assistant Secretaries and Assistant Treasurers. The Assistant
----------------------------------------------
Secretaries and Assistant Treasurers, if any, shall perform such duties as shall
be assigned to them by the Secretary or the Treasurer, respectively, or by the
President or the Board of Directors. In the absence, inability or refusal to
act of the Secretary or the Treasurer, the Assistant Secretaries or Assistant
Treasurers,
10
respectively, in the order designated by the Board of Directors, or in the
absence of any designation, then in the order of their election or appointment,
shall perform the duties and exercise the powers of the Secretary or Treasurer,
as the case may be.
10. Bond of Officers. The Board of Directors may require any officer to
----------------
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for such terms and conditions as
the Board of Directors may specify, including without limitation for the
faithful performance of such officer's duties and for the restoration to the
Corporation of any property belonging to the Corporation in such officer's
possession or under the control of such officer.
11. Salaries. Officers of the Corporation shall be entitled to such
--------
salaries, emoluments, compensation or reimbursement as shall be fixed or allowed
from time to time by the Board of Directors.
ARTICLE VI
----------
Indemnification
---------------
1. Indemnification. To the extent permitted or required by the DGCL and
---------------
any other applicable law, if any director or officer of the Corporation is made
a party to or is involved in any proceeding because such person is or was a
director or officer of the Corporation, the Corporation shall (a) indemnify such
person from and against any liability, including but not limited to expenses of
investigation and preparation, expenses in connection with appearance as a
witness and fees and disbursements of counsel, accountants or other experts,
incurred by such person in such proceeding, and (b) advance to such person
expenses incurred in such proceeding. The Corporation may in its discretion,
but is not obligated in any way to, indemnify and advance expenses to an
employee or agent of the Corporation to the same extent as to a director or
officer, and the Corporation may indemnify an employee, fiduciary, or agent of
the Corporation to a greater extent than expressly permitted herein for officers
and directors, provided such indemnification is not in violation of public
policy.
2. Provisions Not Exclusive. The foregoing provisions for
------------------------
indemnification and advancement of expenses are not exclusive, and the
Corporation may at its discretion provide for indemnification or advancement of
expenses in a resolution of its shareholders or directors, in a contract or in
its Articles of Incorporation.
3. Effect of Modification of DGCL. Any repeal or modification of the
------------------------------
foregoing provisions of this Article for indemnification or advancement of
expenses shall not affect adversely any right or protection stated in such
provisions with respect to any act or omission occurring prior to the time of
such repeal or modification. If any provision of this Article or any part
thereof shall be held to be prohibited by or invalid under applicable law, such
provision or part thereof shall be deemed amended to accomplish the objectives
of the provision or part thereof as originally written to the fullest extent
permitted by law and all other provisions or parts shall remain in full force
and effect.
11
4. Definitions. As used in this Article, the following terms have the
-----------
following meanings:
(a) DGCL. When used with reference to an act or omission occurring
----
prior to the effectiveness of any amendment to the DGCL after the effectiveness
of the adoption of this Article, the term "DGCL" shall include such amendment
only to the extent that the amendment permits a Corporation to provide broader
indemnification rights than the DGCL permitted prior to the amendment.
(b) Corporation. The term "Corporation" includes any domestic or
-----------
foreign entity that is a predecessor of the Corporation by reason of a merger or
other transaction in which the predecessor's existence ceased upon consummation
of the transaction.
(c) Director or Officer. A "director" or "officer" is an individual
-------------------
who is or was a director or officer of the Corporation or an individual who,
while a director or officer of the Corporation, is or was serving at the
Corporation's request as a director, officer, partner, trustee, employee,
fiduciary, or agent of another domestic or foreign corporation or other person
or of an employee benefit plan. A director or officer is considered to be
serving an employee benefit plan at the Corporation's request if his or her
duties to the Corporation also impose duties on, or otherwise involve services
by, the director or officer to the plan or to participants in or beneficiaries
of the plan. The terms "director" and "officer" include, unless the context
requires otherwise, the estate or personal representative of a director, of
officer, as applicable.
(d) Liability. The term "liability" means the obligation incurred
---------
with respect to a proceeding to pay a judgment, settlement, penalty, fine
(including any excise tax assessed with respect to an employee benefit plan), or
reasonable expenses.
(e) Proceeding. The term "proceeding" means any threatened, pending
----------
or completed action, suit, or proceeding whether civil, criminal, administrative
or investigative, and whether formal or informal.
5. Insurance. The Corporation may purchase and maintain insurance on
---------
behalf of a person who is or was a director, officer, employee, fiduciary, or
agent of the Corporation, or who, while a director, officer, employee,
fiduciary, or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee, fiduciary, or
agent of another domestic or foreign corporation or other person or of an
employee benefit plan, against liability asserted against or incurred by the
person in that capacity or arising from his or her status as a director,
officer, employee, fiduciary, or agent, whether or not the Corporation would
have power to indemnify the person against the same liability under the DGCL.
Any such insurance may be procured from any insurance company designated by the
Board of Directors, whether such insurance company is formed under the laws of
the state of Delaware or any other jurisdiction of the United States or
elsewhere, including any insurance company in which the Corporation has an
equity or any other interest through stock ownership or otherwise.
12
6. Expenses as a Witness. The Corporation may pay or reimburse expenses
---------------------
incurred by a director, officer, employee, fiduciary, or agent in connection
with an appearance as a witness in a proceeding at a time when he or she has not
been made a named defendant or respondent in the proceeding.
7. Notice to Shareholders. If the Corporation indemnifies or advances
----------------------
expenses to a director under this Article in connection with a proceeding by or
in the right of the Corporation, the Corporation shall give written notice of
the indemnification or advance to the shareholders with or before the notice of
the next shareholders' meeting. If the next shareholder action is taken without
a meeting at the instigation of the Board of Directors, such notice shall be
given to the shareholders at or before the time the first shareholder signs a
writing consenting to such action.
ARTICLE VII
-----------
Execution of Instruments; Loans; Checks and
Endorsements; Deposits; Proxies
-------------------------------
1. Execution of Instruments. The President or any Vice President shall
------------------------
have the power to execute and deliver on behalf of and in the name of the
Corporation any instrument requiring the signature of an officer of the
Corporation, except as otherwise provided in these Bylaws or when the execution
and delivery of the instrument shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation. Unless authorized
to do so by these Bylaws or by the Board of Directors, no officer, agent or
employee shall have any power or authority to bind the Corporation in any way,
to pledge its credit or to render it liable pecuniarily for any purpose or in
any amount.
2. Borrowing. No loan shall be contracted on behalf of the Corporation,
---------
and no evidence of indebtedness shall be issued, endorsed or accepted in its
name, unless authorized by the Board of Directors or a committee designated by
the Board of Directors so to act. Such authority may be general or confined to
specific instances. When so authorized, an officer may (a) effect loans at any
time for the Corporation from any bank or other entity and for such loans may
execute and deliver promissory notes or other evidences of indebtedness of the
Corporation; and (b) mortgage, pledge or otherwise encumber any real or personal
property, or any interest therein, owned or held by the Corporation as security
for the payment of any loans or obligation of this Corporation, and to that end
may execute and deliver for the Corporation such instruments as may be necessary
or proper in connection with such transaction.
3. Loans to Directors, Officers and Employees. The Corporation may lend
------------------------------------------
money to, guarantee the obligations of and otherwise assist directors, officers
and employees of the Corporation, or directors of another corporation of which
the Corporation owns a majority of the voting stock, only upon compliance with
the requirements of the DGCL.
4. Checks and Endorsements. All checks, drafts or other orders for the
-----------------------
payment of money, obligations, notes or other evidences of indebtedness, bills
of lading, warehouse receipts,
13
trade acceptances and other such instruments shall be signed or endorsed for the
Corporation by such officers or agents of the Corporation as shall from time to
time be determined by resolution of the Board of Directors, which resolution may
provide for the use of facsimile signatures.
5. Deposits. All funds of the Corporation not otherwise employed shall
--------
be deposited from time to time to the Corporation's credit in such banks or
other depositories as shall from time to time be determined by resolution of the
Board of Directors, which resolution may specify the officers or agents of the
Corporation who shall have the power, and the manner in which such power shall
be exercised, to make such deposits and to endorse, assign and deliver for
collection and deposit checks, drafts and other orders for the payment of money
payable to the Corporation or its order.
6. Proxies. Unless otherwise provided by resolution adopted by the Board
-------
of Directors, the President or any Vice President: (a) may from time to time
appoint one or more agents of the Corporation, in the name and on behalf of the
Corporation, (i) to cast the votes which the Corporation may be entitled to cast
as the holder of stock or other securities in any other corporation, association
or other entity whose stock or other securities may be held by the Corporation,
at meetings of the holders of the stock or other securities of such other
corporation, association or other entity, or (ii) to consent in writing to any
action by such other corporation, association or other entity; (b) may instruct
the person so appointed as to the manner of casting such votes or giving such
consent; and (c) may execute or cause to be executed in the name and on behalf
of the Corporation and under its corporate seal, or otherwise, all such written
proxies or other instruments as may be deemed necessary or proper.
ARTICLE VIII
------------
Shares of Stock
---------------
1. Certificates of Stock. The shares of the Corporation may, but need
---------------------
not, be represented by certificates. Unless the DGCL or another law expressly
provides otherwise, the fact that the shares are not represented by certificates
shall have no effect on the rights and obligations of shareholders. If the
shares are represented by certificates, such certificates shall be signed by the
President and the Secretary or Treasurer or such other representatives of the
Corporation as are designated by the Board of Directors; provided, however, that
where such certificate is signed or countersigned by a transfer agent or
registrar (both of which may be the Corporation itself or any employee of the
Corporation) the signatures of such officers of the Corporation may be in
facsimile form. In case any officer of the Corporation who shall have signed,
or whose facsimile signature shall have been placed on, any certificate shall
cease for any reason to be such officer before such certificate shall have been
issued or delivered by the Corporation, such certificate may nevertheless be
issued and delivered by the Corporation as though the person who signed such
certificate, or whose facsimile signature shall have been placed thereon, had
not ceased to be such officer of the Corporation. Every certificate
representing shares issued by the Corporation shall state the number of shares
owned by the holder in the Corporation, shall designate the class of stock to
which such shares belong, and shall otherwise be in such form as is required by
law and as the Board of Directors shall prescribe.
14
2. Shares Without Certificates. The Board of Directors may authorize the
---------------------------
issuance of any class or series of shares of the Corporation without
certificates. Such authorization shall not affect shares already represented by
certificates until they are surrendered to the Corporation. Within a reasonable
time following the issue or transfer of shares without certificates, the
Corporation shall send the shareholder a complete written statement of the
information required on certificates by the DGCL.
3. Record. A record shall be kept of the name of each person or entity
------
holding the stock represented by each certificate for shares of the Corporation
issued, the number of shares represented by each such certificate, the date
thereof and, in the case of cancellation, the date of cancellation. The person
or other entity in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof, and thus a holder of record of
such shares of stock, for all purposes as regards the Corporation.
4. Transfer of Stock. Transfers of shares of the stock of the
-----------------
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by such registered holder's attorney thereunto authorized,
and on the surrender of the certificate or certificates for such shares properly
endorsed.
5. Transfer Agents and Registrars; Regulations. The Board of Directors
-------------------------------------------
may appoint one or more transfer agents or registrars with respect to shares of
the stock of the Corporation. The Board of Directors may make such rules and
regulations as it may deem expedient and as are not inconsistent with these
Bylaws, concerning the issue, transfer and registration of certificates for
shares of the stock of the Corporation.
6. Lost, Destroyed or Mutilated Certificates. In case of the alleged
-----------------------------------------
loss, destruction or mutilation of a certificate representing stock of the
Corporation, a new certificate may be issued in place thereof, in such manner
and upon such terms and conditions as the Board of Directors may prescribe, and
shall be issued in such situations as required by the DGCL.
ARTICLE IX
----------
Fiscal Year
-----------
The fiscal year of the Corporation shall be the year established by the
Board of Directors.
ARTICLE X
---------
Corporate Books and Records
---------------------------
1. Corporate Books. The books and records of the Corporation may be kept
---------------
at such place or places as may be from time to time designated by the Board of
Directors.
2. Addresses of Shareholders. Each shareholder shall furnish to the
-------------------------
Secretary of the Corporation or the Corporation's transfer agent an address to
which notices from the Corporation, including notices of meetings, may be
directed and if any shareholder shall fail so to designate such
15
an address, it shall be sufficient for any such notice to be directed to such
shareholder at such shareholder's address last known to the Secretary or
transfer agent.
3. Fixing Record Date. The Board of Directors may fix in advance a date
------------------
as a record date for the determination of the shareholders entitled to a notice
of or to vote at any meeting of shareholders or any adjournment thereof, or to
express consent (or dissent) to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action. Such record date shall not be
more than 50 nor less than 10 days before the date of such meeting, nor more
than 10 days prior to any other action to which the same relates. Only such
shareholders as shall be shareholders of record on the date so fixed shall be so
entitled with respect to the matter to which the same relates. If the Board of
Directors shall not fix a record date as above provided, and if the Board of
Directors shall not for such purpose close the stock transfer books as provided
by statute, then the record date shall be established by statute in such cases
made and provided.
4. Inspection of Books and Records. Any person who has been a holder of
-------------------------------
record of shares of the Corporation (or of voting trust certificates
representing such shares) for at least three months immediately preceding such
holder's demand or who is the holder of record of, or the holder of record of
voting trust certificates representing, at least five percent (5%) of all
outstanding shares of the Corporation, has the right, upon written demand
stating the purpose thereof, to examine, in person or by agent or attorney, at
any reasonable time and for any proper purpose, the Corporation's books and
records of account, minutes and record of holders of shares (and of voting trust
certificates therefor) and to make extracts therefrom.
5. Distribution of Financial Statements. Upon the written request of any
------------------------------------
shareholder of the Corporation, the Corporation shall mail to such shareholder
its last annual and most recently published financial statement.
6. Audits of Books and Accounts. The Corporation's books and accounts
----------------------------
shall be audited at such times and by such auditors as shall be specified and
designated by unanimous resolution of the Board of Directors.
ARTICLE XI
----------
Emergency Bylaws and Actions
----------------------------
Subject to repeal or change by action of the shareholders, the Board of
Directors may adopt emergency bylaws and exercise other powers in accordance
with and pursuant to the provisions of the DGCL.
16
ARTICLE XII
-----------
Amendments
----------
Unless the Articles of Incorporation or a particular Bylaw reserves the
right to amend the Bylaw to the shareholders, and subject to repeal or change by
action of the shareholders, either the Board of Directors or the Shareholders
shall have the power to alter, amend or repeal these Bylaws or adopt new bylaws.
17