Exhibit 3.2
FORM OF
BYLAWS OF
ABERCROMBIE & FITCH CO.
Adopted _____, 1996
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meeting. The annual meeting of the
stockholders of this corporation, for the purpose of fixing or changing the
number of directors of the corporation, electing directors and transacting
such other business as may come before the meeting, shall be held on such
date, at such time and at such place as may be designated by the Board of
Directors.
Section 1.02. Special Meetings. Special meetings of the
stockholders may be called at any time by the chairman of the board, the vice
chairman of the board, or in case of the death, absence or disability of the
chairman of the board and the vice chairman of the board, the president, or in
case of the president's death, absence, or disability, the vice president, if
any, authorized to exercise the authority of the president, or a majority of
the Board of Directors acting with or without a meeting; provided, that if and
to the extent that any special meeting of stockholders may be called by any
other person or persons specified in any provision of the certificate of
incorporation or any amendment thereto or any certificate filed under Section
151(g) of the Delaware General Corporation Law (or its successor statute as in
effect from time to time), then such special meeting may also be called by the
person or persons, in the manner, at the times and for the purposes so
specified.
Section 1.03. Place of Meetings. Meetings of stockholders
shall be held at the principal office of the corporation in the State of Ohio,
unless the Board of Directors decides that a meeting shall be held at some
other place and causes the notice thereof to so state.
Section 1.04. Notice of Meetings. (a) Unless waived, a
written, printed, or typewritten notice of each annual or special meeting,
stating the date, hour and place and the purpose or purposes thereof shall be
served upon or mailed to each stockholder of record entitled to vote or
entitled to notice, not more than 60 days nor less than 10 days before any
such meeting. If mailed, such notice shall be directed to a stockholder at
his or her address as the same appears on the records of the corporation. If a
meeting is adjourned to another time or place and such adjournment is for 30
days or less and no new record date is fixed for the adjourned meeting, no
further notice as to such adjourned meeting need be given if the time and place
to which it is adjourned are fixed and announced at such meeting. In the
event of a transfer of shares after notice has been given and prior to the
holding of the meeting, it shall not be necessary to serve notice on the
transferee. Such notice shall specify the place where the stockholders list
will be open for examination prior to the meeting if required by Section 1.08
hereof. If the adjournment is for more than 30 days, or after the adjournment
a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
(b) A written waiver of any such notice signed by the person
entitled thereto, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends
the meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 1.05. Fixing Date for Determination of Stockholders of
Record. In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of
any other change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other action. If the Board
shall not fix such a record date, (i) 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 is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held, and (ii) in any case
involving the determination of stockholders for any purpose other than notice
of or voting at a meeting of stockholders, the record date for determining
stockholders for such purpose shall be the close of business on the day on
which the Board of Directors shall adopt the resolution relating thereto.
Determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of such meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 1.06. Organization. At each meeting of the
stockholders, the chairman of the board, or in his absence, the vice chairman
of the board, or in his absence, the president, or, in his absence, any
vice-president, or, in the absence of the chairman of the board, the vice
chairman of the board, the president and a vice-president, a chairman chosen
by a majority in interest of the stockholders present in person or by proxy
and entitled to vote, shall act as chairman, and the secretary of the
corporation, or, if the secretary of the corporation not be present, the
assistant secretary, or if the secretary and the assistant secretary not be
present, any person whom the chairman of the meeting shall appoint, shall act
as secretary of the meeting.
Section 1.07. Quorum. A stockholders' meeting duly called
shall not be organized for the transaction of business unless a quorum is
present. Except as otherwise expressly provided by law, the certificate of
incorporation, these bylaws, or any certificate filed under Section 151(g) of
the Delaware General Corporation Law (or its successor statute as in effect
from time to time), (i) at any meeting called by the Board of Directors, the
presence in person or by proxy of holders of record entitling them to exercise
at least one-third of the voting power of the corporation shall constitute a
quorum for such meeting and (ii) at any meeting called other than by the Board
of Directors, the presence in person or by proxy of holders of record
entitling them to exercise at least a majority of the voting power of the
corporation shall constitute a quorum for such meeting. The stockholders
present at a duly organized meeting can continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum. If a meeting cannot be organized because a quorum has not
attended, a majority in voting interest of the stockholders present may
adjourn, or, in the absence of a decision by the majority, any officer
entitled to preside at such meeting may adjourn the meeting from time to time
to such time (not more than 30 days after the previously adjourned meeting)
and place as they (or he) may determine, without notice other than by
announcement at the meeting of the time and place of the adjourned meeting.
At any such adjourned meeting at which a quorum is present any business may be
transacted which might have been transacted at the meeting as originally
called.
Section 1.08. Order of Business and Procedure. The order of
business at all meetings of the stockholders and all matters relating to the
manner of conducting the meeting shall be determined by the chairman of the
meeting. Meetings shall be conducted in a manner designed to accomplish the
business of the meeting in a prompt and orderly fashion and to be fair and
equitable to all stockholders, but it shall not be necessary to follow any
manual of parliamentary procedure.
Section 1.09. Advance Notice of Stockholder Proposals. In
order to properly submit any business to an annual meeting of stockholders, a
stockholder must give timely notice in writing to the secretary of the
corporation. To be considered timely, a stockholder's notice must be
delivered either in person or by United States certified mail, postage
prepaid, and received at the principal executive offices of the corporation
(a) not less than 120 days nor more than 150 days before the first anniversary
date of the corporation's proxy statement in connection with the last annual
meeting of stockholders or (b) if no annual meeting was held in the previous
year or the date of the applicable annual meeting has been changed by more
than 30 days from the date contemplated at the time of the previous year's
proxy statement, not less than a reasonable time, as determined by the Board
of Directors, prior to the date of the applicable annual meeting.
Nomination of persons for election to the Board of Directors
may be made by the Board of Directors or any committee designated by the Board
of Directors or by any stockholder entitled to vote for the election of
directors at the applicable meeting of stockholders. However, nominations
other than those made by the Board of Directors or its designated committee
must comply with the procedures set forth in this Section 1.09, and no person
shall be eligible for election as a director unless nominated in accordance
with the terms of this Section 1.09.
A stockholder may nominate a person or persons for election to
the Board of Directors by giving written notice to the secretary of the
corporation in accordance with the procedures set forth above. In addition to
the timeliness requirements set forth above for notice to the corporation by a
stockholder of business to be submitted at an annual meeting of stockholders,
with respect to any special meeting of stockholders called for the election of
directors, written notice must be delivered in the manner specified above and
not later than the close of business on the seventh day following the date on
which notice of such meeting is first given to stockholders.
The secretary of the corporation shall deliver any stockholder
proposals and nominations received in a timely manner for review by the Board
of Directors or a committee designated by the Board of Directors.
A stockholder's notice to submit business to an annual meeting
of stockholders shall set forth (i) the name and address of the stockholder,
(ii) the class and number of shares of stock beneficially owned by such
stockholder, (iii) the name in which such shares are registered on the stock
transfer books of the corporation, (iv) a representation that the stockholder
intends to appear at the meeting in person or by proxy to submit the business
specified in such notice, (v) any material interest of the stockholder in the
business to be submitted and (vi) a brief description of the business desired
to be submitted to the annual meeting, including the complete text of any
resolutions to be presented at the annual meeting, and the reasons for
conducting such business at the annual meeting. In addition, the stockholder
making such proposal shall promptly provide any other information reasonably
requested by the corporation.
In addition to the information required above to be given by a
stockholder who intends to submit business to a meeting of stockholders, if
the business to be submitted is the nomination of a person or persons for
election to the Board of Directors then such stockholder's notice must also
set forth, as to each person whom the stockholder proposes to nominate for
election as a director, (a) the name, age, business address and, if known,
residence address of such person, (b) the principal occupation or employment
of such person, (c) the class and number of shares of stock of the corporation
which are beneficially owned by such person, (d) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors or is otherwise required by the rules and
regulations of the Securities and Exchange Commission promulgated under the
Securities Exchange Act of 1934, as amended, (e) the written consent of such
person to be named in the proxy statement as a nominee and to serve as a
director if elected and (f) a description of all arrangements or
understandings between such stockholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such stockholder.
Any person nominated for election as director by the Board of
Directors or any committee designated by the Board of Directors shall, upon
the request of the Board of Directors or such committee, furnish to the
secretary of the corporation all such information pertaining to such person
that is required to be set forth in a stockholder's notice of nomination.
Notwithstanding the foregoing provisions of this Section 1.09,
a stockholder who seeks to have any proposal included in the corporation's
proxy statement shall comply with the requirements of Regulation 14A under the
Securities Exchange Act of 1934, as amended.
Section 1.10. Voting. (a) Each stockholder shall, at each
meeting of the stockholders, be entitled to vote in person or by proxy each
share or fractional share of the stock of the corporation having voting rights
on the matter in question and which shall have been held by him and registered
in his name on the books of the corporation on the date fixed pursuant to
Section 1.05 of these bylaws as the record date for the determination of
stockholders entitled to notice of and to vote at such meeting.
(b) Shares of its own stock belonging to the corporation or to
another corporation, if a majority of the shares entitled to vote in the
election of directors in such other corporation is held, directly or
indirectly, by the corporation, shall neither be entitled to vote nor be
counted for quorum purposes.
(c) Any such voting rights may be exercised by the stockholder
entitled thereto in person or by his proxy appointed by an instrument in
writing, subscribed by such stockholder or by his attorney thereunto
authorized and delivered to the secretary of the meeting in sufficient time
to permit the necessary examination and tabulation thereof before the vote is
taken; provided, however, that no proxy shall be valid after the expiration of
three years after the date of its execution, unless the stockholder executing
it shall have specified therein the length of time it is to continue in force.
At any meeting of the stockholders all matters, except as otherwise provided
in the certificate of incorporation, in these bylaws or by law, shall be
decided by the vote of a majority in voting interest of the stockholders
present in person or by proxy and voting thereon, a quorum being present. The
vote at any meeting of the stockholders on any question need not be by ballot,
unless so directed by the chairman of the meeting or required by the
certificate of incorporation. On a vote by ballot each ballot shall be signed
by the stockholder voting, or by his proxy, if there be such proxy, and it
shall state the number of shares voted.
Section 1.11. Inspectors. The Board of Directors, in advance
of any meeting of the stockholders, may appoint one or more inspectors to act
at the meeting. If inspectors are not so appointed, the person presiding at
the meeting may appoint one or more inspectors. If any person so appointed
fails to appear or act, the vacancy may be filled by appointment made by the
Board of Directors in advance of the meeting or at the meeting by the person
presiding thereat. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector at the meeting with strict impartiality and according to the best of
his ability. The inspectors so appointed, if any, shall determine the number
of shares outstanding, the shares represented at the meeting, the existence of
a quorum and the authenticity, validity and effect of proxies and shall
receive votes, ballots, waivers, releases, or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count
and tabulate all votes, ballots, waivers, releases, or consents, determine and
announce the results and do such acts as are proper to conduct the election or
vote with fairness to all stockholders. On request of the person presiding at
the meeting, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and execute a certificate of any fact
found by them. Any report or certificate made by them shall be prima facie
evidence of the facts stated and of the vote as certified by them.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers of Board. The powers of the
corporation shall be exercised, its business and affairs conducted, and its
property controlled by or under the direction of the Board of Directors,
except as otherwise provided by the law of Delaware or in the certificate of
incorporation.
Section 2.02. Number of Directors. The number of directors of
the corporation (exclusive of directors to be elected by the holders of any
one or more series of Preferred Stock voting separately as a class or classes)
shall not be less than four nor more than nine, the exact number of directors
to be such number as may be set from time to time within the limits set forth
above by resolution adopted by affirmative vote of a majority of the whole
Board of Directors. As used in these Bylaws, the term "whole Board" means the
total number of directors which the corporation would have if there were no
vacancies.
Section 2.03. Election of Directors. At each meeting of the
stockholders for the election of directors, the persons receiving the greatest
number of votes shall be the directors. Directors need not be stockholders.
Section 2.04. Nominations.
2.04.1. Nominations for the election of directors may be
made by the Board of Directors or by any stockholder entitled to vote for the
election of directors.
2.04.2. Such nominations, if not made by the Board of
Directors, shall be made by notice in writing, delivered or mailed by first
class United States mail, postage prepaid, to the secretary of the corporation
not less than 14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided, however, that if
less than 21 days' notice of the meeting is given to stockholders, such
written notice shall be delivered or mailed, as prescribed, to the secretary of
the corporation not later than the close of the seventh day following the day
on which notice of the meeting was mailed to stockholders. Each such notice
shall set forth (i) the name, age, business address and, if known, residence
address of each nominee proposed in such notice, (ii) the principal occupation
or employment of each such nominee, and (iii) the number of shares of stock of
the corporation which are beneficially owned by each such nominee.
2.04.3. Notice of nominations which are proposed by the
Board of Directors shall be given on behalf of the Board by the chairman of
the meeting.
2.04.4. The chairman of the meeting may, if the facts
warrant, determine and declare to the meeting that a nomination was not made
in accordance with the foregoing procedure, and if the chairman should so
determine, the chairman shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 2.05. Resignations. Any director of the corporation
may resign at any time by giving written notice to the chairman of the board
or the secretary of the corporation. Such resignation shall take effect at
the time specified therein, and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 2.06. Vacancies. In the event that any vacancy shall
occur in the Board of Directors, whether because of death, resignation,
removal, newly created directorships resulting from any increase in the
authorized number of directors, the failure of the stockholders to elect the
whole authorized number of directors, or any other reason, such vacancy may be
filled by the vote of a majority of the directors then in office, although
less than a quorum. A director elected to fill a vacancy, other than a newly
created directorship, shall hold office for the unexpired term of his
predecessor. Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the certificate of
incorporation, vacancies and newly created directorships of such class or
classes or series may be filled by a majority of directors elected by such
class or classes or series thereof then in office, or by a sole remaining
director so elected.
Section 2.07. Removal of Directors. Directors may be removed
only as provided in the certificate of incorporation.
Section 2.08. Place of Meeting, etc. The Board of Directors
may hold any of its meetings at the principal office of the corporation or at
such other place or places as the Board of Directors (or the chairman in the
absence of a determination by the Board of Directors) may from time to time
designate. Directors may participate in any regular or special meeting of the
Board of Directors by means of conference telephone or similar communications
equipment pursuant to which all persons participating in the meeting of the
Board of Directors can hear each other and such participation shall constitute
presence in person at such meeting.
Section 2.09. Annual Meeting. A regular annual meeting of the
Board of Directors shall be held each year at the same place as and
immediately after the annual meeting of stockholders, or at such other place
and time as shall theretofore have been determined by the Board of Directors
and notice thereof need not be given. At its regular annual meeting the Board
of Directors shall organize itself and elect the officers of the corporation
for the ensuing year, and may transact any other business.
Section 2.10. Regular Meetings. Regular meetings of the Board
of Directors may be held at such intervals at such time as shall from time to
time be determined by the Board of Directors. After such determination and
notice thereof has been once given to each person then a member of the Board
of Directors, regular meetings may be held at such intervals and time and
place without further notice being given.
Section 2.11. Special Meetings. Special meetings of the Board
of Directors may be called at any time by the Board of Directors or by the
chairman or by a majority of directors then in office to be held on such day
and at such time as shall be specified by the person or persons calling the
meeting.
Section 2.12. Notice of Meetings. Notice of each special
meeting or, where required, each regular meeting, of the Board of Directors
shall be given to each director either by being mailed on at least the third
day prior to the date of the meeting or by being telegraphed, faxed or given
personally or by telephone on at least 24 hours notice prior to the date of
meeting. Such notice shall specify the place, date and hour of the meeting
and, if it is for a special meeting, the purpose or purposes for which the
meeting is called. At any meeting of the Board of Directors at which every
director shall be present, even though without such notice, any business may
be transacted. Any acts or proceedings taken at a meeting of the Board of
Directors not validly called or constituted may be made valid and fully
effective by ratification at a subsequent meeting which shall be legally and
validly called or constituted. Notice of any regular meeting of the Board of
Directors need not state the purpose of the meeting and, at any regular
meeting duly held, any business may be transacted. If the notice of a special
meeting shall state as a purpose of the meeting the transaction of any business
that may come before the meeting, then at the meeting any business may be
transacted, whether or not referred to in the notice thereof. A written
waiver of notice of a special or regular meeting, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein shall be deemed the equivalent of such notice, and attendance of a
director at a meeting shall constitute a waiver of notice of such meeting
except when the director attends the meeting and prior to or at the
commencement of such meeting protests the lack of proper notice.
Section 2.13. Quorum and Voting. At all meetings of the Board
of Directors, the presence of a majority of the directors then in office shall
constitute a quorum for the transaction of business. Except as otherwise
required by law, the certificate of incorporation, or these bylaws, the vote
of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors. At all meetings of the
Board of Directors, each director shall have one vote.
Section 2.14. Committees. The Board of Directors may appoint
an executive committee and any other committee of the Board of Directors, to
consist of one or more directors of the corporation, and may delegate to any
such committee any of the authority of the Board of Directors, however
conferred, other than the power or authority in reference to amending the
certificate of incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the bylaws of the corporation. No committee shall
have the power or authority to declare a dividend or to authorize the issuance
of stock unless the resolution creating such committee expressly so provides.
Each such committee shall serve at the pleasure of the Board of Directors,
shall act only in the intervals between meetings of the Board of Directors and
shall be subject to the control and direction of the Board of Directors. Any
such committee may act by a majority of its members at a meeting or by a
writing or writings signed by all of its members. Any such committee shall
keep written minutes of its meetings and report the same to the Board of
Directors at the next regular meeting of the Board of Directors.
Section 2.15. Compensation. The Board of Directors may, by
resolution passed by a majority of those in office, fix the compensation of
directors for service in any capacity and may fix fees for attendance at
meetings and may authorize the corporation to pay the traveling and other
expenses of directors incident to their attendance at meetings, or may
delegate such authority to a committee of the board.
Section 2.16. Action by Consent. Any action required or
permitted to be taken at any meeting of the board or of any committee thereof
may be taken without a meeting if a written consent thereto is signed by all
members of the board or of such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of the board or such
committee.
ARTICLE III
OFFICERS
Section 3.01. General Provisions. The principal officers of
the corporation shall be the chairman of the board (who shall be a director),
a vice chairman of the board (who shall be a director), a president and chief
executive officer (who shall be a director), such number of vice-presidents as
the board may from time to time determine, a secretary and a treasurer. Any
person may hold any two or more offices and perform the duties thereof, except
the offices of chairman of the board and vice chairman of the board, or the
offices of president and vice-president or the offices of president and
secretary.
Section 3.02. Election, Terms of Office, and Qualification.
The officers of the corporation named in Section 3.01 of this Article III
shall be elected by the Board of Directors for an indeterminate term and shall
hold office at the pleasure of the Board of Directors.
Section 3.03. Additional Officers, Agents, etc. In addition
to the officers mentioned in Section 3.01 of this Article III, the corporation
may have such other officers or agents as the Board of Directors may deem
necessary and may appoint, each of whom shall hold office for such period,
have such authority and perform such duties as the Board of Directors may from
time to time determine. The Board of Directors may delegate to any officer
the power to appoint any subordinate officers or agents. In the absence of
any officer of the corporation, or for any other reason the Board of Directors
may deem sufficient, the Board of Directors may delegate, for the time being,
the powers and duties, or any of them, of such officer to any other officer,
or to any director.
Section 3.04. Removal. Except as set forth below, any officer
of the corporation may be removed, either with or without cause, at any time,
by resolution adopted by the Board of Directors at any meeting, the notice (or
waivers of notice) of which shall have specified that such removal action was
to be considered. Any officer appointed not by the Board of Directors but by
an officer or committee to which the Board of Directors shall have delegated
the power of appointment may be removed, with or without cause, by the
committee or superior officer (including successors) who made the appointment,
or by any committee or officer upon whom such power of removal may be
conferred by the Board of Directors.
Section 3.05. Resignations. Any officer may resign at any
time by giving written notice to the Board of Directors, or to the chairman of
the board, the vice chairman of the board, the president, or the secretary of
the corporation. Any such resignation shall take effect at the time specified
therein, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 3.06. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification, or otherwise, shall be filled
in the manner prescribed in these bylaws for regular appointments or elections
to such office.
ARTICLE IV
DUTIES OF THE OFFICERS
Section 4.01. The Chairman of the Board. The chairman of the
board shall have general supervision over the property, business and affairs
of the corporation and over its several officers, subject, however, to the
control of the Board of Directors. The chairman shall, if present, preside at
all meetings of the stockholders and of the Board of Directors. The chairman
may sign, with the secretary, treasurer or any other proper officer of the
corporation thereunto authorized by the Board of Directors, certificates for
shares in the corporation.
Section 4.02. Vice Chairman of the Board. The vice chairman
of the board shall perform such duties as are conferred upon him by these
bylaws or as may from time to time be assigned to him by the chairman of the
board or the Board of Directors. The authority of the vice chairman of the
board to sign in the name of the corporation all certificates for shares and
deeds, mortgages, leases, bonds, contracts, notes and other instruments, shall
be coordinate with like authority of the chairman of the board. In the
absence or disability of the chairman of the board, the vice chairman of the
board shall perform all the duties of the chairman of the board, and when so
acting, shall have all the powers of the chairman of the board.
Section 4.03. The President. The president shall be chief
executive officer of the corporation and shall perform such duties as are
conferred upon him by these bylaws or as may from time to time be assigned to
him by the chairman of the board or the vice chairman of the board or the
Board of Directors. The president may sign, execute and deliver in the name
of the corporation all deeds, mortgages, bonds, leases, contracts, or other
instruments either when specially authorized by the Board of Directors or when
required or deemed necessary or advisable by him in the ordinary conduct of
the corporation's normal business, except in cases where the signing and
execution thereof shall be expressly delegated by these bylaws to some other
officer or agent of the corporation or shall be required by law or otherwise
to be signed or executed by some other officer or agent, and the president may
cause the seal of the corporation, if any, to be affixed to any instrument
requiring the same.
Section 4.04. Vice-Presidents. The vice-presidents shall
perform such duties as are conferred upon them by these bylaws or as may
from time to time be assigned to them by the Board of Directors, the
chairman of the board, the vice chairman of the board or the president. At
the request of the chairman of the board, in the absence or disability of
the president, the vice-president designated by the chairman of the board
shall perform all the duties of the president, and when so acting, shall
have all of the powers of the president.
Section 4.05. The Treasurer. The treasurer shall be the
custodian of all funds and securities of the corporation. Whenever so
directed by the Board of Directors, the treasurer shall render a statement of
the cash and other accounts of the corporation, and the treasurer shall cause
to be entered regularly in the books and records of the corporation to be kept
for such purpose full and accurate accounts of the corporation's receipts and
disbursements. The treasurer shall have such other powers and shall perform
such other duties as may from time to time be assigned to him by the Board of
Directors, the chairman of the board or the vice chairman of the board.
Section 4.06. The Secretary. The secretary shall record and
keep the minutes of all meetings of the stockholders and the Board of
Directors in a book to be kept for that purpose. The secretary shall be the
custodian of, and shall make or cause to be made the proper entries in, the
minute book of the corporation and such other books and records as the Board
of Directors may direct. The secretary shall be the custodian of the seal of
the corporation, if any, and shall affix such seal to such contracts,
instruments and other documents as the Board of Directors or any committee
thereof may direct. The secretary shall have such other powers and shall
perform such other duties as may from time to time be assigned to him by the
Board of Directors, the chairman of the board or the vice chairman of the
board.
ARTICLE V
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 5.01. Indemnification. (a) The corporation shall
indemnify and hold harmless any person (and the heirs, executors or
administrators of such person) who was or is a party or is threatened to be
made a party to, or is involved in, any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he, his testator, or intestate 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, employee, or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
as a member of any committee or similar body, to the fullest extent permitted
by the laws of Delaware as they may exist from time to time. The right to
indemnification conferred in this Article V shall also include the right to be
paid by the corporation the expenses incurred in connection with any such
proceeding in advance of its final disposition to the fullest extent permitted
by the laws of Delaware as they may exist from time to time.
(b) The corporation may, by action of its Board of Directors,
provide indemnification to such of the employees and agents of the corporation
to such extent and to such effect as the Board of Directors shall determine to
be appropriate and authorized by the laws of Delaware as they may exist from
time to time.
Section 5.02. Insurance. The proper officers of the
corporation, without further authorization by the Board of Directors, may in
their discretion purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent for another corporation, partnership, joint venture, trust or other
enterprise, against any liability.
Section 5.03. ERISA. To assure indemnification under this
Article of all such persons who are or were "fiduciaries" of an employee
benefit plan governed by the Act of Congress entitled "Employee Retirement
Income Security Act of 1974", as amended from time to time, the provisions of
this Article V shall, for the purposes hereof, be interpreted as follows: an
"other enterprise" shall be deemed to include an employee benefit plan; the
corporation shall be deemed to have requested a person to serve as an employee
of an employee benefit plan where the performance by such person of his duties
to the corporation also imposes duties on, or otherwise involves services by,
such person to the plan or participants or beneficiaries of the plan; excise
taxes assessed on a person with respect to an employee benefit plan pursuant
to said Act of Congress shall be deemed "fines"; and action taken or omitted
by a person with respect to an employee benefit plan in the performance of
such person's duties for a purpose reasonably believed by such person to be in
the interest of the participants and beneficiaries of the plan shall be deemed
to be for a purpose which is not opposed to the best interests of the
corporation.
Section 5.04. Contractual Nature. The foregoing provisions of
this Article V shall be deemed to be a contract between the corporation and
each director and officer who serves in such capacity at any time while this
Article is in effect. Neither any repeal or modification of this Article or,
to the fullest extent permitted by the laws of Delaware, any repeal or
modification of laws, shall affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought based in whole or in part
upon any such state of facts.
Section 5.05. Construction. For the purposes of this Article
V, references to "the corporation" include in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers and employees or agents, so that any person who is or was
a director or officer of such constituent corporation or is or was serving at
the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise or as a member of any committee or similar body shall stand in the
same position under the provisions of this Article with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
ARTICLE VI
DEPOSITORIES, CONTRACTS AND OTHER INSTRUMENTS
Section 6.01. Depositories. The chairman of the board, the
vice chairman of the board, the president, the treasurer, and any
vice-president of the corporation whom the Board of Directors authorizes to
designated depositories for the funds of the corporation are each authorized to
designate depositories for the funds of the corporation deposited in its name
and the signatories and conditions with respect thereto in each case, and from
time to time, to change such depositories, signatories and conditions, with
the same force and effect as if each such depository, the signatories and
conditions with respect thereto and changes therein had been specifically
designated or authorized by the Board of Directors; and each depository
designated by the Board of Directors or by the chairman of the board, the vice
chairman of the board, the president, the treasurer, or any such
vice-president of the corporation, shall be entitled to rely upon the
certificate of the secretary or any assistant secretary of the corporation
setting forth the fact of such designation and of the appointment of the
officers of the corporation or of other persons who are to be signatories with
respect to the withdrawal of funds deposited with such depository, or from
time to time the fact of any change in any depository or in the signatories
with respect thereto.
Section 6.02. Execution of Instruments Generally. In addition
to the powers conferred upon the chairman of the board in Section 4.01 and the
vice chairman of the board in Section 4.02 and except as otherwise provided in
Section 6.01 of this Article VI, all contracts and other instruments entered
into in the ordinary course of business requiring execution by the corporation
may be executed and delivered by the president, the treasurer, or any vice
president and authority to sign any such contracts or instruments, which may
be general or confined to specific instances, may be conferred by the Board of
Directors upon any other person or persons. Any person having authority to
sign on behalf of the corporation may delegate, from time to time, by
instrument in writing, all or any part of such authority to any person or
persons if authorized so to do by the Board of Directors.
ARTICLE VII
SHARES AND THEIR TRANSFER
Section 7.01. Certificate for Shares. Every owner of one or
more shares in the corporation shall be entitled to a certificate, which shall
be in such form as the Board of Directors shall prescribe, certifying the
number and class of shares in the corporation owned by him. When such
certificate is counter-signed by an incorporated transfer agent or registrar,
the signature of any of said officers may be facsimile, engraved, stamped or
printed. The certificates for the respective classes of such shares shall be
numbered in the order in which they shall be issued and shall be signed in the
name of the corporation by the chairman of the board or the vice chairman of
the board, or the president or a vice president, and by the secretary or an
assistant secretary or the treasurer or an assistant treasurer. A record
shall be kept of the name of the person, firm, or corporation owning the
shares represented by each such certificate and the number of shares
represented thereby, the date thereof, and in case of cancellation, the date
of cancellation. Every certificate surrendered to the corporation for
exchange or transfer shall be cancelled and no new certificate or certificates
shall be issued in exchange for any existing certificates until such existing
certificates shall have been so cancelled.
Section 7.02. Lost, Destroyed and Mutilated Certificates. If
any certificates for shares in the corporation become worn, defaced, or
mutilated but are still substantially intact and recognizable, the directors or
authorized officers, upon production and surrender thereof, shall order the
same cancelled and shall issue a new certificate in lieu of same. The holder
of any shares in the corporation shall immediately notify the corporation if
a certificate therefor shall be lost, destroyed, or mutilated beyond
recognition, and the corporation may issue a new certificate in the place of
any certificate theretofore issued by it which is alleged to have been lost
or destroyed or mutilated beyond recognition, and the Board of Directors may,
in its discretion, require the owner of the certificate which has been lost,
destroyed, or mutilated beyond recognition, or his legal representative, to
give the corporation a bond in such sum and with such surety or sureties as it
may direct, not exceeding double the value of the stock, to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss, destruction, or mutilation of any such certificate. The Board
of Directors may, however, in its discretion, refuse to issue any such new
certificate except pursuant to legal proceedings, under the laws of the State
of Delaware in such case made and provided.
Section 7.03. Transfers of Shares. Transfers of shares in the
corporation shall be made only on the books of the corporation by the
registered holder thereof, his legal guardian, executor, or administrator, or
by his attorney thereunto authorized by power of attorney duly executed and
filed with the secretary of the corporation or with a transfer agent appointed
by the Board of Directors, and on surrender of the certificate or certificates
for such shares properly endorsed or accompanied by properly executed stock
powers and evidence of the payment of all taxes imposed upon such transfer.
The person in whose name shares stand on the books of the corporation shall,
to the full extent permitted by law, be deemed the owner thereof for all
purposes as regards the corporation.
Section 7.04. Regulations. The Board of Directors may make
such rules and regulations as it may deem expedient, not inconsistent with
these bylaws concerning the issue, transfer, and registration of certificates
for shares in the corporation. It may appoint one or more transfer agents or
one or more registrars, or both, and may require all certificates for shares
to bear the signature of either or both.
ARTICLE VIII
SEAL
The Board of Directors may provide a corporate seal, which
shall be circular and contain the name of the corporation engraved around the
margin and the words "corporate seal", the year of its organization, and the
word "Delaware".